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Full text of "The Making Of The Constitution"

JNIVERSAI 
LIBRARY 


OU_1 66072 


JNIVERSAI 
LIBRARY 



THE MAKING OF THE 
CONSTITUTION 



ffiKarrrn 



THE SUPREME COURT IN UNITED STATES HISTORY 
Revised Edition. Two Volumes 

CONGRESS, THE CONSTITUTION, AND THE SUPREME COURT 
THE MAKING OF THE CONSTITUTION 



THE MAKING OF THE 
CONSTITUTION 



BY 



CHARLES WARREN 

AUTHOR OF "THE RITPKKMK rouirr iy IINITKI> STVTKS HISTORY' 
"THE SUPUIOMK roi UT AND SOVKRKK;N STATES" 

"L'ONOUBHS, TIIK CONHTITI'TION, AND 
TIIK sriKKMB COl'KT" 




BOSTON 
LITTLE, BROWN AND COMPANY 

1937 



Copyright, 1928, 1937, 
BY LITTLE, BROWN, AND COMPANY 



All rights reserved 



Published October, 1928 

Reprinted January, 1929 

Republished February, 1937 

Reprinted February, 1937 

Reprinted April, 1937 



PRINTED IN THE UNITED STATUS OF AMBRICA 



PREFACE TO 1937 EDITION 

New economic, social, and political conditions, and 
new legislative proposals have renewed public interest 
in the conditions which led to, and which surrounded, 
the making of the Constitution (whose one' hundred 
and fiftieth anniversary occurs on September 17, 1937). 
I have tried to make present-day readers realize that, 
like all works of wise statesmanship of modern times, 
the Constitution was a practical document, drafted* by 
practical men men of wide vision and high ideals but 
also of skill in adjustment of varying point? of view. 
That is why it has lasted and proved adequate to the 
needs of our country. It was not the product of a 
class or of a section, and no single influence led either 
to its inception or to its adoption as Part One and 
Part Three of this book amply show. 

CHARLES WARREN 

February, 1937. 



INTRODUCTION 

THIS book is intended for the student, the layman, 
and the lawyer, who may desire to know how and why 
the various clauses of the Constitution were framed, 
and the influences surrounding the men who framed 
them. 

It may be asked : Why another book on the Con- 
stitution ? But can there be a more important subject 
for an American than an adequate knowledge of the 
document on which his government is founded? The 
increase of attention to this subject in recent years is 
one of the healthiest signs of the fundamental soundness 
of American policies. It is interesting to read now 
what J. Franklin Jameson wrote, forty years ago, in 
his Introduction to the Study of the Constitutional and 
Political History of the States. 

"Three years ago (1882) when I first visited the Library 
of the Department of State at Washington, the Constitution 
of the United States was kept folded up in a little tin box 
in the lower part of a closet, while the Declaration of 
Independence, mounted with all elegance, was exposed to 
the view of all in the central room of the library. It was 
evident that the former document was an object of interest 
to very few of the visitors of Washington. But when I was 
last in the library, I learned that the Constitution also was 
being mounted in order to be similarly placed upon exhi- 
bition, because, as I understood it, there was a more general 
desire to see it. It seemed to me that this incident is typical 
of a considerable change which the last few years have seen 
in our way of looking at American history. The interest 
which during most of the years of the republic has been 
nearly confined, so far as the popular mind is concerned, to 



vi INTRODUCTION 

the more dramatic episodes and portions of our history, and 
has made histories of discoveries, histories of settlements, and 
pictorial fieldbooks of our various wars the most popular 
historical works, is now at last being extended to our con- 
stitutional and political history. ..." 

Since those words were written, there has been a 
vast change in the attitude of the public towards a 
study of the Constitution. The original document 
has been brought into the light, and now has an honored 
and fittingly permanent public location in the Library 
of Congress. And both by legislation and otherwise, 
means are now provided by which every one may 
become familiar with its provisions. Knowledge, how- 
ever, of its contents is imperfect without knowledge 
of the conditions and of the ideals which led to its 
formation. 

In this book, I have attempted three things first, 
to picture the necessity for the Constitution, through 
the letters and words of the statesmen who led in bring- 
ing about the Federal Convention of 1787 ; second, to 
bring together, as far as possible, the letters and news- 
paper articles written during the period of that Federal 
Convention, so as to show how it and its great work 
were viewed by the men of the time ; third, to present 
the debates on the Constitution from day to day, in 
such a manner that one may easily trace in a continued 
story the way in which each of the important clauses of 
the Constitution reached its final shape. 

There have been many histories of the Constitution ; 
but no single book contains all the contemporary mate- 
rial. Most of the letters of the public men of that era, 
referring to the making of the Constitution, are of 
course to be found, either in Max Farrand's valuable 
work entitled The Records of the Federal Convention; 
in the Documentary History of the Constitution ; in the 



INTRODUCTION vii 

Diplomatic Correspondence of the United States; in 
George Bancroft's notable History of the Formation 
of the Constitution; in George Ticknor Curtis's History 
of the Constitution ; or in the collected works of Wash- 
ington, Madison, Hamilton, Monroe, Jay, King, and 
Jefferson, and the scattered correspondence of other 
statesmen. But most, if not all, of these books are 
voluminous, difficult of access, or out of print. It has 
seemed to me, therefore, that to assemble all these 
letters in a single volume in their proper sequence would 
deeply impress upon a student of the Constitution, the 
sentiments and motives and ideals which impelled and 
guided the framers in their great task. In themselves, 
these letters are history, as well as the material from 
which each reader may construct history for himself. 

In the same way, I have attempted to bring before 
the reader the materials from the newspapers of the 
year 1787, which reflect the economic, social, and polit- 
ical conditions then prevailing, as well as the attitude 
of the correspondents of the papers. No book has 
hitherto attempted to reproduce these contemporary 
newspaper articles, the facts and sentiments contained 
in which constituted (in part at least) the influences 
which were brought to bear upon the members of the 
Federal Convention and upon the public. While con- 
temporary newspaper articles do not always present 
facts with entire accuracy, they certainly contain what 
their readers, in general, then accepted as facts. J. A. 
Froude, in a much quoted passage, has said that: 
"Actions and words are carved upon eternity ; opinions 
are but forms of cloud created by the prevailing cur- 
rents of the moral air." This sentiment is contrary 
to human experience. What the people thought to be 
true has often been more important than the actual 
truth ; and events of history have often been founded 



viii INTRODUCTION 

on a belief as much as on a fact. If all the economic 
and political conditions which led to the making of the 
Constitution were not, in reality, quite as black or 
quite as disastrous as they then seemed to many of the 
statesmen of that day, those statesmen at least believed 
them to be so, and acted on that belief. 

In order to impress upon the reader the actual 
sequence of events in the making of the Constitution 
and the influences and conditions surrounding each 
step taken by the Federal Convention which framed it, 
I have set forth these materials for the history of the 
formation of that document letters and newspaper 
articles as they were written or appeared, day by 
day. This method of treatment may be open to crit- 
icism ; but I believe that in this manner the reader 
can be led to appreciate the actual atmosphere in which, 
from day to day, the framers were living at least, 
so far as materials are now available for its reproduc- 
tion. I have presented the bald facts, leaving to the 
reader himself to clothe them with fancy. 1 

Every American who wishes really to understand the 
principles of the Constitution should, of course, read 
the Notes of Debates in the Federal Convention made by 
James Madison. It must be admitted, however, that 
Madison's Notes are not easy reading. For the 
delegates discussed the same subject on many different 
days ; they also discussed on the same day parts of 
many subjects ; they changed their views, as the Con- 
vention progressed and as compromises were entered 
into or arguments against their views became more 
convincing, or as the attitude of other delegates 
changed; they altered and reversed their decisions 
on a subject, in order to adjust their vote to other 

1 The editor and publisher of the first daily newspaper in England, The Daily 
Courant, March 11, 1702, wrote : " Nor will he take upon him to give any comments 
or conjectures of his own, but will relate any matters of fact, supposing other people 
to have sense enough to make reflections for themselves." 



INTRODUCTION ix 

votes previously taken. Hence, some sort of a guide 
to Madison's Notes is necessary, if one desires to gain 
a knowledge of how any particular clause in the Con- 
stitution reached its final shape. Moreover, the rea- 
sons which impelled the delegates to adopt a provision 
generally lay in political and economic experiences 
in past history which were not set forth in the de- 
bates ; and the sources of many of these provisions 
were to be found in documents anterior to the Conven- 
tion and not referred to in the discussions. I have 
attempted in this book, therefore, while depicting the 
proceedings and debates of the Convention as they 
occurred day by day, to trace at the same time a con- 
secutive story of the source of each important clause 
of the Constitution, and of its progress to its final form, 
as well as its connection with previous history. 

I have tried to keep this book within the bounds of 
its title and not to allow it to become a commentary on 
Constitutional law. So far as I have succeeded in this 
respect, I advance the claim made by Pope in the preface 
to his poems : " For what I have published, I can only 
hope to be pardoned ; but for what I have burned, I 
deserve to be praised/' 

CHARLES WARREN. 

WASHINGTON, D. C. 
May, 1928. 



CONTENTS 

CHAPTER K4GBJ 

PREFACE iii 

INTRODUCTION v 



PART ONE 

BEFORE THE CONVENTION 

I. FEARS OF DISUNION 3 

II. THE DELEGATES, THE PUBLIC, AND THE PRESS . 55 

PART TWO 
DURING THE CONVENTION 

I. THE OPENING OF THE CONVENTION ... 99 

II. THE NATIONAL LEGISLATURE 134 

III. THE EXECUTIVE, THE JUDICIARY, AND THE REPORT 

OF THE COMMITTEE OF THE WHOLE . . . 173 

IV. THE SMALL VERSUS THE LARGE STATES . . 220 
V. THE GREAT COMPROMISE 267 

VI. COMPLETION OF THE PLAN 313 

VII. THE PREAMBLE AND CONGRESS .... 368 

VIII. POWERS OF CONGRESS 453 

IX. THE PRESIDENT, THE JUDICIARY, AND THE STATES 523 

X. COMMERCE AND NEW STATES 567 

XL THE PRESIDENT AND VICE PRESIDENT . . .621 

XII. THE FINAL SESSIONS 686 

PART THREE 
AFTER THE CONVENTION 

I. OPPOSITION AND RATIFICATION .... 733 

II. SOURCES OF KNOWLEDGE OF THE CONSTITUTION . 783 



xii CONTENTS 

APPENDICES 

PAOB 

APPENDIX A. BOOKS CONTAINING LETTERS QUOTED . 807 

B. THE DELEGATES 808 

C. COMMENTS ON JOHN ADAMS' BOOK . . 815 

D. RATIFICATION OF THE CONSTITUTION . . 819 

E. ABRAHAM BALDWIN'S ACCOUNT OF THE 

CONVENTION 821 

F. THE PREAMBLE AND GENERAL WELFARE . 825 

INDEX 827 



THE MAKING OF THE 
CONSTITUTION 



PART ONE 
BEFORE THE CONVENTION 



"If not the greatest exertion of human understanding, the greatest 
single effort of National deliberation that the world has ever seen. ..." 
John Adams to Rufus King, December #6\ 1757. 

"The example of changing a Constitution, by assembling the wise 
men of the State, instead of assembling armies, will be worth as much to 
the world as the former examples we had given them. The Constitution, 
too, which was the result of our deliberations is unquestionably the wisest 
ever presented to men." 

Thomas Jefferson to David Humphreys, March 18, 1789. 



CHAPTER ONE 
FEARS OF DISUNION 

In recent years there has been a tendency to inter- 
pret all history in terms of economics and sociology 
and geography of soil, of debased currency, of land 
monopoly, of taxation, of class antagonism, of frontier 
against seacoast, and the like and to attribute the 
actions of peoples to such general materialistic causes. 
This may be a wise reaction from the old manner of 
writing history almost exclusively in terms of wars, 
politics, dynasties, and religions. But its fundamental 
defect is, that it ignores the circumstance that the 
actions of men are frequently based quite as much on 
sentiment and belief as on facts and conditions. It 
leaves out the souls of men and their response to the 
inspiration of great leaders. It forgets that there are 
such motives as patriotism, pride in country, unselfish 
devotion to the public welfare, desire for independence, 
inherited sentiments, and convictions of right and 
justice. The historian who omits to take these facts 
into consideration is a poor observer of human nature. 
No one can write true history who leaves out of account 
the fact that a man may have an inner zeal for prin- 
ciples, beliefs, and ideals. "It seems to me a great 
truth," wrote Thomas Carlyle, "that human things 
canaot stand on selfishness, mechanical utilities, eco- 
nomics, and law courts." Those who contend, for 
instance, that economic causes brought about the War 



4 FEARS OF DISUNION 

of the Revolution will always find it difficult to explain 
away the fact that the men who did the fighting 
thought, themselves, that they were fighting for a 
belief a principle. Sixty -two years after the battle 
of Concord and Lexington, an able American historian 
had an interview with one of the men who had been in 
that battle, and asked him the reasons which impelled 
him, a plain, simple working man, to take arms. And 
this was the colloquy between the historian and the 
man who fought : 1 

"Why did you ? . . . My histories tell me that you men 
of the Revolution took up arms against intolerable oppres- 
sions." 

"What were they? Oppressions? I didn't feel them." 

"What, were you not oppressed by the Stamp Act?" 

"I never saw one of those stamps. ... I am certain I 
never paid a penny for one of them." 

"Well, what about the tea tax?" 

"Tea tax, I never drank a drop of the stuff. The boys 
threw it all overboard." 

"Then, I suppose, you had been reading Harrington, or 
Sidney and Locke, about the eternal principles of liberty?" 

"Never heard of 'em." 

"Well, then, what was the matter, what did you mean in 
going into the fight ? " 

"Young man, what we meant in going for those red-coats, 
was this : we always had governed ourselves and we always 
meant to. They didn't mean we should." 

In other words, it was an idea, a principle belief in 
self-government for which this New England yeo- 
man and his fellow-countrymen were fighting. 

In the same manner, the men who urged and framed 
and advocated the Constitution were striving for an 
idea, an ideal belief in a National Union, and a 
determination to maintain it, and the men who opposed 

1 John Adams, the Statesman of the American Revolution (1898), by Mellen Cham- 
berlain, p. 248, interview with Capt. Levi Preston of Danvers, Mass., in 1837. 



FEARS OF DISUNION 5 

the Constitution were also fighting for the preservation 
of an idea self-rule as opposed to control by a central 
government which they feared would destroy their local 
governments. Historians who leave these factors out 
of account and who contend that these men were moved 
chiefly by economic conditions utterly fail to inter- 
pret their character and their acts. To appreciate 
the patriotic sincerity of the motives which inspired the 
framing of the Constitution, it is necessary to read the 
hopes and fears of the leading American statesmen 
prior to 1787, as expressed in their own words. Thomas 
Jefferson wrote, one hundred years ago, that "the open- 
ing scenes of our present government" would not be 
"seen in their true aspect until the letters of the day, 
now held in private hoards, shall be broken up and laid 
open to public use." 1 Within the last thirty-five 
years, these letters have been very fully published ; 
and unless their authors, in writing to intimate personal 
friends, were expressing one reason for desiring a change 
in the form of government, while in fact moved by 
other and more selfish reasons, then these letters must 
portray, with accuracy, the motives which led the 
writers to advocate a new Constitution. These let- 
ters, moreover, embody the principles on which the 
new Government was to be built principles which 
were distinctively American and little connected with 
economics. 

The actual evils which led to the Federal Con- 
vention of 1787 are familiar to every reader of history 
and need no detailed description here. As is well 
known, they arose, in general, first, from lack of power 
in the Government of the Confederation to legislate 
and enforce at home such authority as it possessed, or 
to maintain abroad its credit or position as a sovereign 
Nation; second, from State legislation unjust to 

1 Jefferson to William Johnson, June 12, 1823. 



6 FEARS OF DISUNION 

citizens and productive of dissensions with neighboring 
States the State laws particularly complained of being 
those staying process of the Courts, making property 
a tender in payment of debts, issuing paper money, 
interfering with foreclosure of mortgages, setting aside 
judgments of the Courts, interfering with private con- 
cerns, imposing commercial restrictions on goods and 
citizens of other States. 1 The Articles of Confederation 
as agreed upon by the Continental Congress on Novem- 
ber 15, 1777, had provided for a Government consisting 
simply of a Congress with a single House, in which each 
State had equal representation a Government having 
no Executive and no adequate Court a Government 
in which Congress had no power to tax, to raise troops, 
to regulate commerce, or to execute or enforce its own 
laws and treaties a Government in which each of the 
various States had power to tax, to make its own money, 
to impose its own import and export duties, and to 
conform or not, as it chose, to the acts or treaties of 
Congress, or to its requisitions for money or troops. 
Congress could only supplicate ; it could not enforce. 

Glendower. "I can call spirits from the vasty deep." 
Hotspur. "Why, so can I, or so can any man. 
But will they come when you do call for them?" 

Such a Government could not operate successfully for 
any length of time and there could be no real Union of 
the States, except in time of war when need of mutual 
protection would prevent undue dissensions. From 

1 For best descriptions of the disastrous conditions of the period 1781 to 1787, 
see Vices of the Political System of the United Stales, Writings of James Madison 
(Hunt's ed.), II, 361 ; History of the United States (1912), by Edward Channing, 
III, and bibliography; The American States During and After the Revolution 1775- 
1789 (1924), by Allan Nevins ; The Rise of American Civilization (1927), by Charles 
A. Beard and Mary R. Beard ; History of the People of the United States, by John 
Bach McMaster, I, 423-427 ; History of the Origin, Formation, and Adoption of the 
ConrtUution (1854-1858), by George Ticknor Curtis; History of the Formation of the 
Constitution (1882), by George Bancroft ; Narrative and Critical History of America 
(ed. by Justin Winsor), VII, chap. 3 and authorities cited; The Critical Period oj 
American History (1888), by John Fiske. 



FEARS OF DISUNION 7 

the very outset, and long before economic disturbances 
had arisen in the States, the voices of American states- 
men were heard urging upon the people the necessity of 
a change. Even before the whole thirteen States had 
decided to ratify the Articles, Alexander Hamilton 
formulated the additional authority which Congress 
ought to possess ; and in this comprehensive docu- 
ment, written in 1780 (when he was only twenty -three 
years old), he anticipated most of the powers which 
were granted, seven years later, by the Constitution. 1 
The ink was scarcely dry on the signatures of the 
delegates from Maryland the last of the thirteen 
States to sign the Articles (on March 1, 1781) when 
James Madison, James Duane of New York, and James 
M. Varnum of Rhode Island were appointed a Com- 
mittee to report on needful changes. 2 This Committee 

1 Hamilton to James Duane, Sept. 3, 1780. Amongst other things, Hamilton 
wrote: "The Confederation, in my opinion, should give Congress complete sover- 
eignty, except as to that part of internal police which relates to the rights of property 
and life among individuals and to raising money by internal taxes. It is necessary 
that everything belonging to this should be regulated by the State Legislatures. 
Congress should have complete sovereignty in all that relates to war, peace, trade, 
and finance ; and to the management of foreign affairs, the right of declaring war ; 
of raising armies, officering, paying them, directing their motions in every respect, 
of equipping fleets and doing the same with them ; of building fortifications, arse- 
nals, magazines, etc., etc. ; of making peace on such conditions as they think proper ; 
of regulating trade, determining with what countries it shall be carried on ; grant- 
ing indulgencies ; laying prohibitions on all the articles of export or import ; impos- 
ing duties, granting bounties and premiums for raising, exporting, or importing and 
applying to their own use, the product of these duties only giving credit to the 
States on whom they are raised in the general account of revenues and expenses ; 
instituting Admiralty Courts, etc. ; of coining money ; establishing banks on such 
terms and with such privileges as they think proper; appropriating funds, and 
doing whatever also relates to the operations of finance; transacting everything 
with foreign nations; making alliances, offensive and defensive, treaties of com- 
merce, etc., etc." See also his series of essays entitled The Continentalist, published 
in Loudon's New York Packet, July 12, 1781, July 4, 1782, Works of Alexander Ham- 
ilton (Lodge's ed., 1908), I. 

2 It is interesting to note the convivial manner in which the final ratification of 
the Confederation was celebrated. The Committee which announced it, Feb. 28, 
1781, recommended "that the Congress adjourn after completing the Confedera- 
tion ; and the President shall invite the Minister of France, the Speaker and Mem- 
bers of the General Assembly, the Vice President and Members of the Supreme 
Executive Council and the officers of the Army and Navy to drink a glass of wine 
to 'The United States of America*, a keg of biscuits in the room of cakes. To be 
in the Hall where Congress sits." Journals of the Continental Congress. 



8 FEARS OF DISUNION 

recommended vesting power in Congress to employ the 
Continental army and navy "to compel any delinquent 
State to fulfill its Federal engagement, by restraining its 
vessels, merchandise, and trade." 1 Another Com- 
mittee, consisting of Edmund Randolph of Virginia, 
Oliver Ellsworth of Connecticut and James M. Varnurn, 
five months later, in August, 1781, reported a long list 
of additional powers for Congress, as necessary in order 
to make the Government efficient, among which was the 
important suggestion that Congress be authorized "to 
distrain the property of a State delinquent in its as- 
signed proportion of men and money." No action 
was ever taken on this Report. 2 A year later a strong 
appeal made by Robert Morris, Superintendent of 
Finance, that Congress be granted power to levy excise, 
land, and poll taxes, to discharge the Government debts 
was adversely reported on by a Congressional Com- 
mittee. In 1783, Congress rejected a motion by 
Alexander Hamilton and James Wilson that that body 
should be given power to levy a land tax ; but, a month 
later, Congress voted to ask the States to grant to it the 
power to levy import duties. 

It is also to be noted that the idea of a Convention 
to revise and amend the Articles of Confederation was 
no new thing in the year 1787. It had been in the 
minds of the leading American statesmen, and long 
before any economic evils appeared in the various 
States. 3 It arose from their patriotic desire for a united 

1 Journals of the Continental Congress, March 1, 6, May 2, July 20, Aug. 22, 1781 ; 
Aug. 5, 1782; April 18, 1783. 

2 As early as Jan. 20, 1778, Judge William Henry Drayton, in the South Carolina 
Assembly, had noted the lack of any power in Congress to enforce its recommenda- 
tions or requisitions, and had proposed as an amendment to the Articles of Con- 
federation that : in case any of the States should in any respect violate the Articles, 
"the Congress shall within one year thereafter declare such State under the ban of 
the Confederacy, and by the utmost vigor of arms shall forthwith proceed against 
such State until it shall have paid due obedience, upon which the ban shall be taken 
off and the State shall be restored to the benefits of this Confederacy." See 
Principles and Acts of the Revolution (1822), by Hezekiah Niles. 

'See esp. Magazine of American History (1883), X, 410-411; Constitutional 



FEARS OF DISUNION 9 

Nation, able to take its place with the other Nations of 
the world. As Edmund Randolph of Virginia strikingly 
said: "The American spirit ought to be mixed with 
American pride, to see the Union magnificently tri- 
umphant." What they chiefly feared were dissensions 
of the States and dissolution of the Union, leaving the 
States open to attack by foreign power. What they 
desired was to frame some form of Government which, 
while safeguarding the liberties of the citizens and the 
rights of the States, should have power to maintain 
adequately its own authority and independence. These 
were the objects which occupied all their correspondence. 
Conventions of the delegates from various States had 
gathered several times prior to 1787. In 1777, a 
Convention from New York and the New England 
States met at Springfield ; in 1778, at New Haven, 
New Jersey and Pennsylvania were represented in 
addition to New York and New England. In 1780, 
New York and New England met at Hartford and 
suggested a General Convention to revise the Articles. 1 

History of the United States (1901), by Francis N. Thorpe, I, 248-254. See also a 
pamphlet by a William Barton (a Philadelphia merchant) published in May, 1781, 
urging such a Convention ; Pelatiah Webster and the Constitution, by Gaillard Hunt, 
The Nation, Dec. 28, 1911. 

1 Madison in his notes of the debates in Congress, April 1, 1783, wrote on the 
subject of Conventions : " Mr. Gorham called for the order of the day, to wit the 
Report on Revenue, etc., and observed, as a cogent reason for hastening that 
business, that the Eastern States at the invitation of the Legislature of Massa- 
chusetts were with N. Y. about to form a Convention for regulating matters of 
common concern. . . . Mr. Mercer expressed great disquietude at this information 
and considered it as a dangerous precedent. . . . Mr. Osgood said that the sole 
object was to guard against an interference of taxes among States whose local 
situation required such precaution. . . . that nothing was intended that could be 
drawn within the purview of the Federal Articles. Mr. Bland said he had always 
considered those Conventions as improper and contravening the spirit of the Fed- 
eral Government. He said they had the appearance of young Congresses. Mr. 
Madison and Mr. Hamilton disapproved of these partial Conventions, not as abso- 
lute violations of the Confederacy but as ultimately leading to them, and in the 
mean time exciting pernicious jealousies ; the latter observing that he wished in- 
stead of them to see a General Convention take place and that he should soon, in 
pursuance of instructions from his constituents, propose to Congress a plan for that 
purpose, the object would be to strengthen the Federal Constitution. Mr. White 
informed Congress that New Hampshire had declined to accede to a plan of Con- 
vention on foot. Mr. Higginson said that no gentleman would be alarmed, at 



10 FEARS OF DISUNION 

The earliest call for a General Convention came from 
the Legislature of New York in 1782, under the leader- 
ship of Alexander Hamilton and General Philip Schuy- 
ler. In 1783, the Continental Congress appointed a 
Committee to consider these New York resolutions for 
a Convention, but no further action was ever taken. 1 
In 1783 also, Washington wrote to Dr. William Gordon 
suggesting a Convention of the People, as follows : 2 

"To suppose that the general concerns of this country can 
be directed by thirteen heads, or one head without com- 
petent powers, is a solecism, the bad effects of which every 
man who has had the practical knowledge to judge from, that 
I have, is fully convinced of; tho' none perhaps has felt 
them in so forcible and distressing a degree. The People 
at large, and at a distance from the theatre of action, who 
only know that the machine was kept in motion, and that 
they are at last arrived at the first object of their wishes, 
are satisfied with the event, without investigating the causes 
of the slow progress to it, or of the expenses which have 
accrued, and which they have been unwilling to pay great 
part of which has arisen from that want of energy in the 
Federal Constitution, which I am complaining of, and which 
I wish to see given to it by a Convention of the People, 
instead of hearing it remarked that, as we have worked 
through an arduous contest with the powers Congress 
already have (but which, by the by, have been gradually 
diminishing) why should they be invested with more ? . . . 
For Heaven's sake, who are Congress? Are they not the 

any rate; for it was pretty certain that the Convention would not take place. 
He wished with Mr. Hamilton to see a General Convention for the purpose of 
revising and amending the Federal Government." Writings of James Madison 
(Hunt's ed.) I. 

1 The Congress postponed action on the proposal for a Convention, Sept. 2, 1783. 
George Bancroft in his History of the Formation of the Constitution of the United 
States of America (1882), I, cites Pennsylvania, Virginia, and Maryland papers of 
July, 1783, as endorsing a Continental Convention. Madison wrote to Jefferson 
as early as December 10, 1783, that George Mason of Virginia was " sound and ripe 
on the article of a Convention for revising our form of Government, and I think 
would not decline a participation in the work." 

2 Washington to Dr. William Gordon, July 8, 1783. Writings of George Washing- 
ion (Ford's ed.) IX. 



FEARS OF DISUNION 11 

creatures of the People, amenable to them for their conduct, 
and dependent from day to day on their breath? Where 
then can be the danger of giving them such powers as are 
adequate to the great ends of Government and to all the 
general purposes of the Confederation (I repeat the word 
general, because I am no advocate for their having to do 
with the particular policy of any State, further than it con- 
cerns the Union at large)." 

In 1784, Richard Henry Lee, then President of the 
Congress, wrote to Madison: "It is by many here 
suggested as a very necessary step for Congress to take, 
the calling on the States to form a Convention for the 
sole purpose of revising the Confederation so far as to 
enable Congress to execute with more energy, effect, 
and vigor the powers assigned to it," l and Madison 
replied to him : "I have not yet found leisure to scan 
the project of a Continental Convention with so close 
an eye as to have made up any observations worthy of 
being mentioned to you. In general, I hold it for a 
maxim that the Union of the States is essential to their 
safety against foreign danger and internal contention, 
and that the perpetuity and efficacy of the present 
system cannot be confided in." In 1785, the Massa- 
chusetts Legislature passed Resolutions, in response to 
a message from Governor James Bowdoin, recommend- 
ing to Congress the calling of a General Convention. 

Meanwhile, the sentiments and motives which in- 
spired the desire for a change in the form of Govern- 
ment may be seen in the letters of Washington, Hamil- 
ton, Jay, Madison, Jefferson and many others, both in 

1 Richard Henry Lee to Madison, Nov. 26, 1784 ; Madison to R. H. Lee, Dec. 
25, 1784. Mann Page of Fredericksburg, Va., wrote to R. H. Lee, Dec. 14, 1784: 
" I think it would be wise in Congress to recommend to the States the calling of a 
Convention for the sole purpose of amending the Confederation. At present, the 
Supreme Council of the Union is so feeble that they have no weight in Government. 
Their recommendations are slighted and their wisest plans are subject to be rejected 
by any one petty insignificant State refusing to accept them." Omitted Chapters of 
History Disclosed in the Life and Papers of Edmund Randolph (1881), by Moncure D. 
Conway, p. 61. 



12 FEARS OF DISUNION 

the South and the North. Washington, more than any 
other man, was responsible for calling the attention of 
the people to the defects of the Confederation. His 
letters were filled with appeals for a remedy. 1 As early 
as July, 1780, he wrote : "Our measures are not under 
the influence and direction of one Council, but thirteen, 
each of which is actuated by local views and poli- 
tics. . . . We are attempting the impossible." In 
December, 1780, he wrote that "there are two things 
(as I have often declared) which, in my opinion, are 
indispensably necessary to the well-being and good 
government of our public affairs ; these are greater 
powers to Congress and more responsibility and per- 
manency in the Executive bodies." In 1782, he wrote 
that if the powers of Congress were not enlarged, 
"anarchy and confusion must ensue." In 1783, he 
wrote that: "The experience, which is purchased at 
the price of difficulties and distress, will alone convince 
us that the honor, power, and true interest of this 
country must be measured by a Continental scale, and 
that every departure therefrom weakens the Union, 
and may ultimately break the band which holds us 
together. To avert these evils, to form a Constitution 
that will give consistency, stability, and dignity to the 
Union and sufficient powers to the great Council of the 
Nation for general purposes, is a duty which is incum- 
bent upon every man who wishes well to his Country, 
and will meet with my aid as far as it can be rendered in 
the private walks of life." On June 8, 1783, he sent 

1 From among the very numerous letters of Washington on the subject, the 
following should be especially noted : to Fielding Lewis, July 6, 1780 ; James Duane, 
Dec. 26, 1780 ; R. R. Livingston, Jan. 31, 1781 ; John Sullivan, Feb. 4, 1781 ; John 
Mathews, Feb. 14, 1781 ; Philip Schuyler, Feb. 0, 1781 ; John P. Custis, Feb. 28, 
1781 ; William Gordon, March 9, 1781 ; Joseph Jones, March 24, 1781 ; Jacob 
Armstrong, March 26, 1781 ; Gen. Greene, March 31, 1781 ; Tench Tilghman, 
April 24, 1782 ; Archibald Gary, June 15, 1782 ; B. Harrison, March 4, 1783 ; A. 
Hamilton, March 4, 1783 ; Lafayette, April 5, 1783 ; William Gordon, July 8, 1783 ; 
B. Harrison, Jan. 18, 1784 ; James McHenry, Aug. 22, 1785 ; James Warren, Oct. 
7, 1785 ; James Madison, Nov. 30, 1785 ; David Stuart, Nov. 30, 1785. 



FEARS OF DISUNION 13 

to the Governors of the States a message in which 
he said : 

"There are four things, which, I humbly conceive, are 
essential to the well-being, I may even venture to say, to 
the existence of the United States, as an independent power. 
First. An indissoluble union of the States under one Fed- 
eral head; secondly. A sacred regard to public justice; 
thirdly. The adoption of a proper peace establishment; 
and, fourthly. The prevalence of that pacific and friendly 
disposition among the people of the United States, which 
will induce them to forget their local prejudices and policies ; 
to make those mutual concessions, which are requisite to 
the general prosperity; and in some instances, to sacrifice 
their individual advantages to the interest of the community. 
These are the pillars on which the glorious fabric of our inde- 
pendency and National character must be supported." 

And these views, he continued to express in the ensu- 
ing years, through a voluminous correspondence with 
friends in the various States. The letters of other 
leading Americans showed a realization that a truly 
National Government which should promote the 
Union of the States was imperative. John Jay of New 
York wrote to Gouverneur Morris of Pennsylvania, 
September 24, 1783 : 1 

"I am perfectly convinced that no time is to be lost in 
raising and maintaining a National spirit in America. 
Power to govern the Confederacy, as to all general purposes, 
should be granted and exercised. The governments of the 
different States should be wound up, and become vigorous. 
America is beheld with jealousy, and jealousy is seldom idle. 
Settle your boundaries without delay. It is better that some 
improper limits should be fixed, than any left in dispute. In 
a word, everything conducive to union and constitutional 
energy of government should be cultivated, cherished and 
protected, and all counsels and measures of a contrary com- 

1 See Jay to Robert R. Livingston, July 19, 1783; Jay to John Adams, Oct. 14, 
1785. 



14 FEARS OF DISUNION 

plexion should at least be suspected of impolitic views and 
objects." 

Governor John Hancock, in his Message to the 
Massachusetts Legislature in September, 1783, said : 
"How to strengthen and improve the Union so as to 
render it completely adequate, demands the immediate 
attention of these States. Our very existence as a free 
nation is suspended upon it." Thomas Jefferson wrote 
to Madison, in 1784 : "I find the conviction growing 
strongly that nothing can preserve our Confederacy 
unless the bond of union, their common Council, be 
strengthened." l And to Monroe, Jefferson wrote in 
1785 : "The interests of the States ought to be made 
joint in every possible instance, in order to cultivate the 
idea of our being one Nation." 2 Stephen Higginson, a 
former Member of Congress from Massachusetts, wrote 
to John Adams, December 30, 1785, that : "Experience 
and observation most clearly evince that in their habits, 
manners, and commercial interests, the Southern and 
Northern States are not only very dissimilar, but in 
many instances directly opposed. Happy for America 
would it be if there was a greater coincidence of senti- 
ment and interest among them. Then we might expect 
those National arrangements soon to take place which 
appear so essential to our safety and happiness." 3 

1 Edward Bancroft wrote to W. W. Frazer, May 28, 1784 : "In every one of the 
States, government is too feeble to command either respect or obedience ; and the 
powers of Congress are still more inadequate to the support of the Confederation. 
Of this, all reasonable men in the Middle States are now convinced ; and Mr. Jef- 
ferson is just now informed, as he tells me, that the great leader of the Virginians, 
Mr. Patrick Henry, who has been violently opposed to every idea of increasing the 
powers of Congress, is convinced of his error, and has within these few days pledged 
himself to Mr. Madison, Mr. Jones, and others, to support a plan which they are to 
prepare and propose to the Legislature of Virginia for amending the Confederation 
by a further concession of powers to Congress ; but I do not believe that this or any 
other plan for this purpose will ever be adopted, even by a majority, much less by 
all the United States." Bancroft, II, 367. 

2 See also Monroe to Jefferson, June 16, 1784, Aug. 15, 1785 ; Monroe to Madi- 
son, June 26, 1785, Feb. 9, 11, 1786. 

8 Letters of Stephen Higginson, Amer. Hist. Ass. Report (1896), I, 704 et seq. Of 
the attitude of men of the different sections of the Union towards each other, the 



FEARS OF DISUNION 15 

Such were the sentiments which prevailed among the 
public men of the country, prior to the year 1786, as to 
the necessity of some alteration in the form of their 
Government which should promote a more perfect 
National Union. The first step towards a Convention 
to frame such an alteration was taken on January 21, 
1786, when the Virginia Legislature, at the suggestion 
of James Madison, passed a Resolution inviting the 
States to send Commissioners to meet in Convention : 

"to take into consideration the trade of the United States; 
to examine the relative situations and trade of the States ; to 
consider how far a uniform system in their commercial regu- 
lations may be necessary to their common interest and their 
permanent harmony; and to report to the several States 
such an act relative to this great object, as, when unani- 
mously ratified by them, will enable the United States in 
Congress effectually to provide for the same." 

This was a very restricted step towards a thorough 
revision of the Articles of Confederation but it was 
a step ; and Madison wrote to James Monroe, March 
19, 1786 : "The efforts for bringing about a correction 
thro the medium of Congress have miscarried. Let 
a Convention, then, be tried. ... If the present 

following letters are illustrative. Elbridge Gerry of Massachusetts wrote to Rufus 
King, May 9, 1785: "What is the matter with Virginia? Their attachments to 
their opinions originate, I fear, from mistaken ideas of their own importance. They 
have certainly many good qualities; but has not their ambition been bribed by 
artifice and flattery to besiege and undermine their reason and good policy?" 
Gerry also wrote to King, May 27, 1785, as to Connecticut : "The Devil is in that 
State. They are like a young Puritan . . . who, having been trammeled with 
piety from his birth and been just freed from his domestic confinement, runs into 
every excess, religious, moral and political." Life and Correspondence of Rufus 
King (1894), I. 

Ephraim Paine of Vermont, writing to Robert R. Livingston from Annapolis, 
May 24, 1784, as to the dissensions between the sections said : "I expected in Con- 
gress to find Justice sit enthroned, supported by all the virtues. Judge, then, how 
great was my disappointment when I found caballing, selfishness, and injustice 
reign almost perpetually. . . . The Southern nabobs behave as though they 
viewed themselves a superior order of animals when compared with those of the 
other end of the Confederacy ; this, sir, you know, does not agree with the great 
spirits of the Northern gentry, and unless a new disposition takes place, some impor- 
tant matters must be left undone, or they will be ill done." Bancroft, II, 364. 



16 FEARS OF DISUNION 

paroxysm of our affairs be totally neglected, our case 
may become desperate. If anything comes of the 
Convention, it will probably be of a permanent not a 
temporary nature, which I think will be a great point." 
To Jefferson, Madison wrote at the same time, March 
18, 1786 : 

"The States are every day giving proofs that separate 
regulations are more likely to set them by the ears than to 
attain the common object. When Massachusetts set on 
foot a retaliation of the policy of Great Britain, Connecticut 
declared her ports free. New Jersey served New York in the 
same way. And Delaware I am told has lately followed the 
example in opposition to the commercial plans of Pennsyl- 
vania. A miscarriage of this attempt to unite the States 
in some effectual plan will have another effect of a serious 
nature. It will dissipate every prospect of drawing a steady 
revenue from our imposts. . . . Another unhappy effect 
of a continuance of the present anarchy of our commerce 
will be a continuance of the unfavorable balance on it, 
which, by draining us of our metals, furnishes pretexts for 
the pernicious substitution of paper money, for indulgences 
to debtors, for postponement of taxes. In fact most of our 
political evils may be traced up to our commercial ones, as 
most of our moral may to our political. ... I almost de- 
spair of success. It is necessary, however, that something 
should be tried . . . and if the present crisis cannot effect 
unanimity, from what future concurrence of circumstances 
is it to be expected ?" 

To Washington, Jay set forth his views of the proposed 
Convention called by Virginia : 1 

"Experience has pointed out errors in our National Gov- 
ernment which call for correction, and which threaten to 
blast the fruit we expected from our tree of liberty. The 
Convention proposed by Virginia may do some good and 
perhaps do more if it comprehended more objects. An 
opinion begins to prevail that a General Convention for 

1 See letters of Jay to Adams, Feb. 22, 1786, and to Washington, Jan. 16, March 
16, 1786, June 27, 1786; letters of Washington to Jay, May 18, Aug. 1, 1786. 



FEARS OF DISUNION 17 

revising the Articles of Confederation would be expedient. 
Whether the people are yet ripe for such a measure, or 
whether the system proposed to be attained by it is only to 
be expected from calamity and commotion, is difficult to 
ascertain. I think we are in a delicate situation, and a vari- 
ety of considerations and circumstances give me uneasiness. 
It is in contemplation to take measures for forming a Gen- 
eral Convention ; the plan is not matured. If it should be 
well concerted and take effect, I am fervent in my wishes that 
it may comport with the line of life you have marked out for 
yourself to favour your country with your counsels on such 
an important and signal occasion." 

To this, Washington replied : "I scarcely know what 
opinion to entertain of a General Convention. That it 
is necessary to revise and amend the Articles of Con- 
federation, I entertain no doubt ; but what may be the 
consequences of such an attempt is doubtful. Yet 
something must be done or the fabric must fall ; it is 
certainly tottering." A month later, June 27, Jay 
wrote to Washington, expressing a fear lest the evils of 
the existing form of Government might drive many 
men into anti-republican views, and he said: "What 
I most fear is that the better kind of people (by which 
I mean the people who are orderly and industrious, who 
are content with their situations, and not uneasy in 
their circumstances) will be led, by the insecurity of 
property, the loss of confidence in their rulers, and the 
want of public faith and rectitude, to consider the 
charms of liberty as imaginary and delusive. A state 
of fluctuation and uncertainty must disgust and alarm 
such men, and prepare their minds for almost any 
change that may promise them quiet and security." 
To this, Washington replied : 

"Your sentiments, that our affairs are drawing rapidly 
to a crisis, accord with my own. What the event will be is 
also beyond the reach of my foresight. ... I do not con- 
ceive we can exist long as a nation without having lodged 



18 FEARS OF DISUNION 

somewhere a power which will pervade the whole Union in as 
energetic a manner, as the authority of the State Govern- 
ments extends over the several States. . . . Requisitions 
are a perfect nullity, where thirteen sovereign, independent, 
disunited States are in the habit of discussing and refusing 
compliance with them at their option. Requisitions are 
actually little better than a jest and a byeword throughout 
the land. If you tell the Legislatures they have violated 
the treaty of peace and invaded the prerogatives of the Con- 
federacy, they will laugh in your face. What then is to be 
done ? Things cannot go on in the same train forever. It 
is much to be feared, as you observe, that the better kind of 
people, being disgusted with the circumstances, will have 
their minds prepared for any revolution whatever. We are 
apt to run from one extreme into another. To anticipate 
and prevent disastrous contingencies, would be the part of 
wisdom and patriotism." 

And referring to Jay's fears lest the evil political 
conditions might cause the people, in despair, to turn 
away from a republican form of government, Wash- 
ington exclaimed: "What astonishing changes a few 
years are capable of producing ! I am told that even 
respectable characters speak of a monarchical form of 
government without horror. From thinking, proceeds 
speaking, thence to acting is often but a single step. 
But how irrevocable and tremendous ! What a tri- 
umph for our enemies to verify their predictions ! 
What a triumph for the advocates of despotism to find 
that we are incapable of governing ourselves, and that 
systems founded on the basis of equal liberty are merely 
ideal and fallacious ! Would to God that wise meas- 
ures may be taken in time to avert the consequences 
we have but too much reason to apprehend !" In the 
same vein, Jay wrote to Adams that "the best citizens 
naturally grow uneasy and look to other systems." 1 

1 Diplomatic Correspondence of the United States, Jay to Adams, Nov. 17, 1786 ; 
see also Jay to Jefferson, Oct. 27, 1786: "The inefficacy of our Government 



FEARS OF DISUNION 19 

Other men were voicing sentiments similar to those of 
Jay ; and it is evident that a very real fear existed lest 
discouragement with political conditions prevailing in 
the States and in the Government of the Confederation 
might turn many to thoughts of establishing a Mon- 
archy. Thus, Rufus King wrote to Jonathan Jackson 
in Massachusetts, September 3, 1786, pointing out that 
the same conditions which were working to dissolve the 
bonds of Union had produced the overthrow of other 
republican governments, and saying : 1 

. . . "It must not be understood that these remarks 
authorize an opinion that a Monarchy would promote the 
happiness of the people of America. Far, very far from it. 
But they show this; if wise and prudent men, discerning 
the imperfections of the present Governments, do not in 
season and without fear propose suitable remedies, the 
causes which changed the Governments alluded to may, and 
probably will, change those of America. Since a Conven- 
tion must assemble at Annapolis, I am glad that delegates 
will attend from Massachusetts. I hope, extraordinary as 
the measure is, that it may issue more favorably than I have 
ever expected. . . . Mr. Madison of Virginia has been 

becomes daily more and more apparent. Our credit and our Treasury are in a sad 
situation, and it is probable that either the wisdom or passions of the people may 
produce changes. A spirit of licentiousness has infected Massachusetts, which 
appears more formidable than some at first apprehended. Whether similar symp- 
toms will not soon mark a like disease in several other States is very problemati- 
cal. . . . Much I think is to be feared from the sentiments which such a state of 
things is calculated to infuse into the minds of the rational and well intentioned. 
In their eyes the charms of liberty will daily fade, and in seeking for peace and 
security they will too naturally turn towards systems in direct opposition to those 
which oppress and disquiet them. If faction should long bear down law and Gov- 
ernment, tyranny may raise its head, or the more sober part of the people may even 
think of a King. In short, my dear Sir, we are in a very unpleasant situation. 
Changes are necessary ; but what they ought to be, what they will be, and how and 
when to be produced, are arduous questions. I feel for the cause of liberty and for 
the honor of my country men who have so nobly asserted it, and who, at present, 
so abuse its blessings. If it should not take root in this soil, little pains will be 
taken to cultivate it in any other." 

1 Mass. Hist. Soc. Proc. (1915), XUX. John Armstrong wrote to Washington 
from Carlisle, Pa., as late as March 2, 1787: "Shall I tell you in confidence, I have 
now twice heard, nor from low authority, some principal men of that State (Massa- 
chusetts) begin to talk of wishing one general Head to the Union, in the room of 
Congress!" Documentary History of the Constitution, IV. 



20 FEARS OF DISUNION 

here for some time past, he will attend the Convention. He 
does not discover or propose any other plan than that of 
investing Congress with full powers for the regulation of 
commerce foreign and domestic. But this power will run 
deep into the authorities of the individual States, and can 
never be well exercised without a Federal Judicial. The 
reform must necessarily be extensive." 

Meanwhile, Congress itself was alarmed at the grow- 
ing dissensions among the States and the people. 1 On 
February 15, 1786, a Committee of Congress composed 
of Rufus King of Massachusetts, Charles Pinckney of 
South Carolina, James Monroe of Virginia, John Kean 
of South Carolina and Charles Pettit of Pennsylvania 
reported that "the crisis has arrived when the people 
of the United States . . . must decide whether they 
will support their rank as a nation, by maintaining the 
public faith at home and abroad ; or whether, for want 
of a timely exertion in establishing a general revenue 
and thereby giving strength to the Confederacy, they 
will hazard not only the existence of the Union, but of 
those great and invaluable privileges for which they 
have so arduously and so honorably contended." And 
on May 13, Pinckney moved in Congress for the ap- 
pointment of a general Committee on the affairs of the 
Nation. "Congress must be invested with greater 
powers," he said, "or the Federal Government must 

1 Francis N. Thorpe in his Constitutional History of the United States, I, 279, says : 
"The last blow was now struck against the credit of the Confederation. When New 
Jersey had approved the Articles, it had insisted that the sole and exclusive power 
of regulating the trade with foreign nations ought to be clearly vested in Congress, 
and from this opinion it had never receded. It resented the power of New York to 
collect taxes from the inhabitants of New Jersey through the port of New York 
City, and now its Assembly voted to pay no part of its quota, one hundred and 
sixty-six thousand dollars, until all the States had consented to the Federal impost. 
Fully aware of the irremedial and disastrous consequence of this decision, Congress 
speedily sent a committee [Charles Pinckney, Nathaniel Gorham and William Gray- 
son] to the New Jersey Legislature to urge its compliance with the requisition. 
Charles Pinckney, the chairman of the committee, in a powerful speech to its Assem- 
bly urged it to call a General Convention of the States for the purpose of increasing 
the powers of the Federal Government and not to precipitate a dissolution of the 
Union by refusing to help cany it on." 



FEARS OF DISUNION 21 

fall. It is therefore necessary for Congress either to 
appoint a Convention for that purpose, or by requisition 
to call on the States for such powers as are necessary 
to enable it to administer the Federal Government." 
William Grayson, a Member of Congress from Virginia, 
wrote to Madison from New York, in March, 1786 : 1 

"There has been some serious thought in the minds of 
some of the Members of Congress to recommend the meet- 
ing of a General Convention to consider of an alteration of 
the Confederation, and there is a motion to this effect now 
under consideration. It is contended that the present Con- 
federation is utterly inefficient and that if it remains much 
longer in its present state of imbecility, we shall be one of 
the most contemptible Nations on the face of the earth. 
For my own part, I have not yet made up my mind on the 
subject. I am doubtful whether it is not better to bear those 
ills we have, than fly to others we know not of. I am, how- 
ever, in no doubt about the weakness of the Fcederal Gov- 
ernment." 

On August 7, 1786, a sub-Committee of Congress, 
headed by Charles Pinckney, reported a set of proposed 
amendments to the Articles of Confederation. As 
Congress, however, took no action on the matter, the 
Convention which had been called by Virginia and 
which was to meet at Annapolis in September was 
looked to by many as a source of hope. That it would 
be forced to deal with the political as well as the com- 
mercial situation was anticipated both in the North and 
the South. Stephen Higginson of Massachusetts wrote 
to John Adams, in July, 1786 : "The ostensible object 
of that Convention is the regulation of commerce, but 
when I consider the men who are deputed from New 
York, Pennsylvania, and Virginia, and the source from 
whence the proposition was made, I am strongly in- 

1 Writings of James Madison (1901), II, 404 note, W. Grayson to Madison. 
March 22, 1786. 



22 FEARS OF DISUNION 

clined to think political objects are intended to be 
combined with commercial, if they do not principally 
engross their attention. . . . Few of them have been 
in the commercial line, nor is it probable they know or 
care much about commercial objects. ... If it be 
practicable to effect a general regulation of trade and to 
harmonize the apparently variant interests of the 
States, it will probably be done by the Convention. 
I shall be happy to have it effected." William Grayson 
had already written to Madison in May, from New 
York : that even if "the Eastern people mean nothing 
more than to carry the commercial point," nevertheless, 
"the State of Virginia, having gone thus far, it is matter 
of great doubt to me whether she had not better go 
farther and propose to the other States to augment the 
powers of the delegates so as to comprehend all the 
grievances of the Union and to combine the commer- 
cial arrangements with them and make them depend- 
ent on each other." James Monroe wrote to Madison 
from New York, in September: "I consider the Con- 
vention at Annapolis as a most important era in our 
affairs. The Eastern men, be assured, mean it as 
leading further than the object originally compre- 
hended. ... I have always considered the regu- 
lation of trade in the hands of the United States as 
necessary to preserve the Union. Without it, it will 
infallibly tumble to pieces." 1 And Madison wrote to 
Jefferson, in August: "Many gentlemen both within 
and without Congress wish to make this meeting sub- 
servient to a plenipotentiary Convention for amending 
the Confederation. Tho my wishes are in favor of such 

1 Higginson to J. Adams, July, 1786, Amer. Hist. Ass. Report (1896), I ; Grayson 
to Madison, May 28, 1786 ; Monroe to Madison, Sept. 8, 1786; Madison to Jeffer- 
son, Aug. 12, 1786. Monroe had written to Jefferson as to the Convention, May 11, 
1786 : "Of its success, I must confess I have some hopes. The investigation of the 
subject will always be of advantage, since truth and sound State policy in every 
instance will urge the commission of the power to the United States." 



FEARS OF DISUNION 23 

an event, yet I despair so much of its accomplishment at 
the present crisis, that I do not extend my views beyond 
a commercial reform. To speak the truth, I almost 
despair even of this." 

When the Convention assembled, it was found that 
only New York, New Jersey, Pennsylvania, Delaware, 
and Virginia were represented (by twelve delegates), 
and that delegates from New England, Maryland, and 
the other three Southern States had either failed to 
arrive or to be appointed. Accordingly, the Con- 
vention adjourned on September 14, after having 
adopted a Report drafted by Alexander Hamilton. 
This Report stated that the National circumstances 
were " of a nature so serious as, in the view of your Com- 
missioners, to render the situation of the United 
States delicate and critical, calling for an exertion of 
the united virtue and wisdom of all the members of the 
Confederacy"; and it concluded with the important 
recommendation that the States should appoint Com- 
missioners to meet at Philadelphia on the second 
Monday of May in the succeeding year "to devise such 
further provisions as shall appear to them necessary to 
render the Constitution of the Foederal Government 
adequate to the exigencies of the Union." l 

Meanwhile, all patriotic Americans who wished to 
see a united country and a real National Union were 
now given serious cause for alarm by the increase of 
sentiment in many parts of the land for a division of the 
States into two or more Confederacies. The fact that 
such a dissolution of the existing Confederacy was 
believed by many men to be the true remedy for the 
unfortunate conditions prevailing in the Government 
drove home to many, who had hitherto doubted, the 
necessity of summoning together the representatives 
of the States in Convention, in an effort to frame an 

1 Sec Madison to Monroe, Sept. 11. 1786. 



24 FEARS OF DISUNION 

adequate Government of the whole. During the past 
three years, this suggestion that the commercial and 
political interests and conditions of the Southern, 
Middle, and Eastern States were so divergent that they 
could be dealt with, fairly and justly, only by a separa- 
tion, had been made on many occasions in letters and in 
newspaper articles. 1 In this year, 1786, the sentiment 
for such a division had been given great impetus by the 
serious dissension which arose in Congress, between the 
States of the South and of the East, over a proposal 
initiated by John Jay, then Secretary of Foreign 
Affairs, to relinquish (for a term of years) the right 
which the United States had long and persistently 
asserted against Spain to the free navigation of the 
Mississippi River. This right had been a cardinal 
principle with the Southern States and especially with 
Virginia ; and the suggestion that its maintenance 
might now be abandoned, through the votes of the 
Northern States headed by Massachusetts, aroused 
hot excitement. 2 The dangerous situation was de- 
scribed by James Monroe (then a Member of Congress 

1 As early as 1783, Edward Bancroft wrote to William Frazier, from Philadel- 
phia: "Should the Confederation be dissolved, it is a question whether we shall 
have thirteen separate States in alliance, or whether the New England, the Middle, 
and the Southern States will form three new Confederacies." Bancroft, I, 332. 
Madison wrote to E. Randolph, Feb. 25, 1783 : " A respectable delegate from 
Massachusetts, a few days ago . . . said that if justice was not to be obtained 
thro general Confederacy, the sooner it was known, the better, that some States 
might be forming other Confederacies adequate to the purpose. . . . Unless some 
amenable and adequate arrangements be speedily taken for adjusting all the sub- 
sisting accounts and discharging the public engagements, a dissolution of the Un- 
ion will be inevitable." In 1784, Richard D. Spaight of North Carolina wrote to 
Governor Martin that in his view, the New England States had tried to weaken the 
Union to increase then- own importance, and that they were pressing so hard upon 
the national framework that "I imagine it will break before they are well aware 
of it." North Carolina State Records, XVII, 173-175. In 1785, Rufus King of 
Massachusetts expressed an opinion that the eight Northern States might quarrel 
decisively with the five Southern States over the Congressional regulation of trade, 
"and in the event must form a sub-Confederation, remedied of all their present 
embarrassment." Life and Correspondence of Rufus King (1894), I, 112-113. 

2 See especially letter of Madison to Jefferson, Aug. 12, 1780 ; and letters of Mon- 
roe to Madison, May 21, Aug. 10, 14, Sept. 3, 1780; to Jefferson, July 10, Aug. 19, 
1786; to Patrick Henry, Aug. 12, 1786. 



FEARS OF DISUNION 25 

from Virginia). Writing to Madison, August 14, 1786, 
he said : "It is manifest here that Jay and his party in 
Congress are determined to pursue this business as far 
as possible, either as the means of throwing the Western 
people and territory without the government of the 
United States and keeping the weight of population and 
government here, or of dismembering the Government 
itself, for the purpose of a separate Confederacy. 
There can be no other object than one of these, and I 
am, from such evidence as I have, doubtful which hath 
the influence." And to Jefferson, he wrote August 19 : 
"I am sorry to inform you that our affairs are daily 
falling into a worse situation, arising more from the 
intrigues of designing men than any real defect in our 
system or distress of our affairs. The same party who 
advocate this business [of the Mississippi River] have 
certainly held in this city Committees for dismembering 
the Confederacy, and throwing the States eastward the 
Hudson into one Government. As yet, this business 
hath not gone far, but that there should be a party in 
its favor, and a man heretofore so well respected but in 
my opinion so little known, engaged in it, is to me very 
alarming." 1 And to Patrick Henry he wrote : 

"Certain it is that Committees are held, in this town, of 
Eastern men and others of this State upon the subject of a 
dismemberment of the States East of the Hudson from the 
Union and the erection of them into a separate government. 
To what lengths they have gone I know not, but have assur- 
ances as to the truth of the above position, with this addition 

1 Monroe wrote to Madison, Sept. 3, 1786 : "They have even sought a dismem- 
berment to the Potomack, and those of the party here have been sounding those in 
office thus far. ... If a dismemberment takes place, that State (Pennsylvania) 
must not be added to the Eastern scale. It were as well to use force to prevent it 
as to defend ourselves afterwards." Monroe wrote to Jefferson, July 16, 1786: 
"The Massachusetts delegates, except the President [Nathaniel Gorham] whose 
talents and merits have been greatly overrated (tho preferable greatly in the latter 
instance to his brethren), are without exception the most illiberal I have ever seen 
from that State. Two of these men whose names are Dane and King are elected 
for the next year which is my motive for making known to you this circumstance." 



26 FEARS OP DISUNION 

to it that the measure is talked of in Mass, familiarly, and is 
supposed to have originated there. The plan of the Govern- 
ment in all its modifications has even been contemplated 
by them. I am persuaded these people who are in Congress 
from that State (at the head of the other business) mean 
that as a step toward the carriage of this, as it will so dis- 
please some of them as to prepare the States for this event. 
. . . Be assured as to all the subjects upon which I have 
given you information above, it hath been founded on au- 
thentic documents. I trust these intrigues are confined to a 
few only, but by these men I am assured are not." 

Monroe was probably unjustified in believing that 
Jay of New York or Nathan Dane or Rufus King (the 
Massachusetts Congressmen) were in favor of division 
of the Union ; but it was unquestionably true that an 
increasing number of men in the different States were 
coming to believe in such a dismemberment as the only 
solution for their political problems. As early as 
February 11, 1786, General Benjamin Lincoln of Mas- 
sachusetts had written to King, describing at length the 
different interests of the States, and concluding : 1 

* 4 If the observations I have made are just, the citizens of 
these States are deceiving themselves, in an expectation 
that any relief can, or will, be granted them by Congress, 
under our present system of government. . . . That our 
interests do and will clash, are troubles which will not be 
questioned. These are the necessary consequences of our 
great extent, of our difference of climate, productions, views, 
etc. I do not see how we shall surmount the evils under 
which we now labor, and prevent our falling into the utmost 
confusion, disgrace, and ruin, but by a division, which might 
be formed upon such principles as would secure our public 
creditors, and thereby our public faith, and our after-peace 
and safety by a firm alliance between the divisions." 

1 Life and Correspondence of Rufus King (1894), I, 156 el seq. ; see also King to 
Gerry, Aug. 13, 1786. 



FEARS OF DISUNION 27 

And Theodore Sedgwick of Massachusetts wrote to 
Caleb Strong, August 6, 1786 : * 

"No reasonable expectations of advantage can be formed 
from the Commercial Convention. The first proposers 
designed none. The measure was originally brought for- 
ward with an intention of defeating the enlargement of the 
powers of Congress. Of this, I have the most decisive evi- 
dence. It well becomes the Eastern and Middle States, who 
are in interest one, seriously to consider what advantages 
result to them from their connection with the Southern 
States. They can give us nothing, as an equivalent for the 
protection which they derive from us, but a participation 
in their commerce. This they deny to us. Should their 
conduct continue the same, and I think there is not any 
prospect of an alteration, an attempt to perpetuate our con- 
nection with them, which act too will be found ineffectual, 
will sacrifice everything to a mere chimera. Even the 
appearance of a Union, cannot, in the way we now are, be 
long preserved. It becomes us seriously to contemplate a 
substitute ; for if we do not controul events we shall be mis- 
erably controulled by them. No other substitute can be 
devised than that of contracting the limits of the Confeder- 
acy to such as are natural and reasonable, and within those 
limits, instead of a nominal, to institute a real and an efficient 
Government." 

Dr. Benjamin Rush wrote from Philadelphia to Dr. 
Richard Price, in London, October 87, 1786 : 2 

"Some of our enlightened men who begin to despair of a 
more complete union of the States in Congress have secretly 
proposed an Eastern, Middle and Southern Confederacy, to 

1 American Historical Review (1899), IV. 

2 Price Papers in Mass. Hist. Soc. Proc. 2d Series (1903), XVI. The Pennsyl- 
vania Journal, May 16, 1787, published Price's reply as follows : "The newspapers 
which you sent me were very acceptable ; the essays and information they contain 
have contributed towards gratifying a curiosity which I am always feeling with re- 
spect to the affairs of the United States. Your Federal Government is a point of 
great difficulty and importance which I find still remains unsettled. I dread the 
thoughts of such a division of the States into three Confederacies, as you say had 
been talked of. It is a pity that some general controuling power cannot be estab- 
lished, of sufficient vigour to decide disputes, to regulate commerce, to prevent 



28 FEARS OF DISUNION 

be united by an alliance offensive and defensive. These 
Confederacies, they say, will be united by nature, by inter- 
est, and by manners, and consequently they will be safe, 
agreeable, and durable. The first will include the four New 
England States and New York. The second will include 
New Jersey, Pennsylvania, Delaware, and Maryland; and 
the last Virginia, North and South Carolina, and Georgia. 
The foreign and domestic debt of the United States they say 
shall be divided justly between each of the new Confedera- 
tions. This plan of a new Continental Government is at 
present a mere speculation. Perhaps necessity, or rather 
Divine Providence, may drive us to it." 

Madison summed up the situation in his diary, 
February 21, 1787, as follows : 

"All [Members of Congress] agreed and owned that the 
Federal Government in its existing shape was inefficient and 
could not last. The members from the Southern and Middle 
States seemed generally anxious for some republican organ- 
ization of the system which should preserve the Union and 
give due energy to the Government of it. Mr. Bingham (of 
Pennsylvania) alone avowed his wishes that the Confederacy 
might be divided into several distinct Confederacies, its 
great extent and various interests being incompatible with 
a single government. The Eastern Members were suspected 
by some of leaning towards some anti-republican establish- 
ment (the result of their late confusions) or of being less desir- 
ous or hopeful of preserving the unity of the empire. For 
the first time, the idea of separate Confederacies had got 
into the newspapers. It appeared today under a Boston 
head. Whatever the views of the leading men in the East- 
wars, and to constitute a Union that shall have weight and credit. At present, the 
power of Congress, in Europe, is an object of derision rather than respect. The 
tumults in New England, the weakness of Congress, and the knavery of the Rhode 
Island Legislature form subjects of triumph in this country. The conclusion is 
that you are falling to pieces and will soon repent your independence." 

James Madison wrote to Edmund Randolph, Jan. 10, 1788 : " I have for some 
time considered him (Patrick Henry) as driving at a Southern Confederacy." To 
Jefferson, he wrote, Dec. 9, 1787, that Henry and his followers would probably 
contend for such amendments " as strike at the essence of the system and must 
lead to an adherence to the principles of the existing Confederation ... or to a 
partition of the Union into several Confederacies." 



FEARS OF DISUNION 29 

ern States may be, it would seem that the great body of the 
people, particularly in Connecticut, are equally indisposed 
either to dissolve or divide the Confederacy, or to submit to 
any anti-republican innovations." 

This sentiment for dismemberment, however, con- 
tinued to spread in the spring of 1787. In April, the 
newspapers in Philadelphia and many other cities 
published widely the following letter : l 

"Instead of attempting to amend the present Articles of 
Confederation with a view to retain them as the form of 
Government, or instead of attempting one General Govern- 
ment for the whole community of the United States, would 
it not be preferable to distribute the United States into three 
Republics, who should enter into a perpetual league and 
alliance for mutual defence? . . . Reflections on the sub- 
ject in the abstract would have suggested to us, and our 
experience has fully convinced us, that there can be only one 
sovereignty in a government ; the notion therefore of a gov- 
ernment by confederation between several independent 
States, each State still retaining its sovereignty, must be 
abandoned, and with it every attempt to amend the present 
Articles of Confederation. . . . The National concerns of 
a people so numerous with a territory so extensive will be 
proportionally difficult and important. This will require 
proportionate powers in the administration, especially in the 
Chief Executive ; greater, perhaps, than will consist with 
the democratic form. Our fate, as far as it can depend on 
human means, is committed to the Convention; as they 
decide, so will our lot be. It must be the wish of the dele- 
gates, and it is certainly both our duty and interest to aid 
them in the arduous business intrusted to them." 

And a Massachusetts newspaper stated that the 
same suggestion for a division of the Confederacy had 
appeared in Southern newspapers : 2 

1 Independent Gazetteer, March 30; Freeman s Journal, April 11; Pennsylvania 
Journal, April 16 ; Massachusetts Centinel, April 18, 1787. See also Pennsylvania 
Gazette, June 29, 1787. 

2 Massachusetts Centinel, April 1, 1787. The New York Daily Advertiser, Feb. 
23, 1787, quoted a Boston dispatch suggesting that Massachusetts refuses to let the 



30 FEARS OF DISUNION 

"A hint has, in the Southern papers, been suggested to the 
Deputies to the Federal Convention on the propriety of 
recommending a dissolution of the Confederation and a 
division of the States into four Republicks the first, to 
contain the States of New Hampshire, Massachusetts, 
Rhode Island and Connecticut, to which Vermont might 
be added the second to contain New York, New Jersey, 
Delaware, Pennsylvania and Maryland the third, Vir- 
ginia, the two Carolinas and Georgia. And the fourth to 
contain the State of Franklin, Kentucky and the lands lying 
on the Ohio. This division seems to be pointed out by cli- 
mates whose effect no positive law ever can surpass. The 
religion, manners, customs, exports, imports and general 
interest of each being then the same, no opposition arising 
from difference in these (as at present) would any longer 
divide their councils unanimity would render it secure at 
home and respected abroad and promote agriculture, manu- 
factures and commerce." 

In addition to their fears as to the growth of this 
policy of division into separate Confederacies, those 
who were anxious for preservation of the Union were 
given a new cause for alarm, in the rise of the Shays 
Rebellion in Massachusetts between September, 1786, 
and February, 1787. 1 It afforded one more reason, in 

jealousy of New York and Pennsylvania keep it bound. "Let the General Court 
recall its delegates from the Convention, send its neighbors proposals for a new 
Congress speaking for New England, and leave the rest of the Continent to pursue 
their own imbecile and disjointed plans." 

1 As to the effect of the Shays Rebellion, see letters of Knox to Washington, Oct. 
23, 1786; Jay to Adams, Oct. 4, 1786; Jay to Jefferson, Dec. 14, 1786; Adams to 
Jay, Nov. 30, 1786 ; Jefferson to Carrington, Jan. 16, 1787. Throughout Decem- 
ber, 1786, and January, February, and March, 1787, columns of despatches and 
letters from Massachusetts appeared in all the leading newspapers. Among them, 
there may be especially noted a letter widely copied from the Hampshire Gazette of 
Dec. 27, 1786, by one Thomas Grover of Worcester who sympathized with the 
insurgents and who accurately summed up their grievances and demands a revi- 
sion of the State Constitution so as to eliminate the Senate, members of which were 
required to have a high property qualification and to be chosen by electors with 
high property qualifications, and which, accordingly, was felt to be not responsive 
to the needs of the people no payment of the face value of Government securities 
to speculators purchasing at a discount the removal of the capital from Boston 
into some place more responsive to the appeals of the farmers reduction of taxes 
through sale of the State lands in Maine ; payment of the National foreign debt 



FEARS OF DISUNION 31 

addition to the many which already existed, for the 
meeting of a Convention to consider an adequate 
framework for a Government for a united Nation. As 
General Henry Knox, then Secretary at War, wrote to 
Washington in October : 

"This dreadful situation has alarmed every man of prin- 
ciple and property in New England. They start as from a 
dream and ask what has been the cause of our delusion? 
What is to afford us security against the violence of lawless 
men ? Our Government must be braced, changed or altered 
to secure our lives and property. . . . The men of reflec- 
tion and principles are determined to endeavor to establish 
a government which shall have a power to protect them in 
their lawful pursuits, and which will be efficient in all cases 
of internal commotions or foreign invasions. They mean 
that liberty 'shall be the basis, a liberty resulting from the 
equal and firm administration of the laws. They wish for 
a General Government of unity, as they see the local Legis- 
latures must naturally and necessarily tend to retard and 
frustrate all General Government." 

John Marshall wrote to James Wilkinson in the 
succeeding January : l 

"All is gloom in the Eastern States, Massachusetts is rent 
into two factions, and an appeal, I fear, has by this time been 
made to the God of battles. . . . Whatever may be the 
cause of these dissensions or however they may terminate, 
in their present operation they deeply affect the happiness 
and reputation of the United States. They will, however, 
I presume tend to people the Western world, if you can gov- 
ern yourselves so wisely as to present a safe retreat to the 

by import and excise taxes instead of by direct taxes on lands and polls ; abolition of 
the Courts of Common Pleas abolition of deputy sheriffs, and authority to con- 
stables to perform sheriff duty "by which means a large swarm of lawyers will be 
banished from their wonted haunts, who have been more damage to the people at 
large, especially the farmers, than the common, savage beasts of prey/' Another 
article, copied from a Boston paper, treating "the cause of the present commotion'*, 
said that " the worm at the root of the tree ... is the shocking mode of taxation, 
which cramps industry by oppressing the poor." See Freeman's Journal, March 4 ; 
Pennsylvania Gazette, April 8, 1787. 

1 Marshall to Wilkinson, Jan. 5, 1787. Amer. Hist. Rev. (1907), XII. 



32 FEARS OF DISUNION 

weaker party. These violent, I fear bloody, dissensions in a 
State I had thought inferior in wisdom and virtue to no one 
in the Union, added to the strong tendency which the poli- 
tics of many eminent characters among ourselves have to 
promote private and public dishonesty, cast a deep shade 
over that bright prospect which the revolution in America 
and the establishment of our free Governments had opened 
to the votaries of liberty throughout the globe. I fear, and 
there is no opinion more degrading to the dignity of man, 
that these have truth on their side who say that man is 
incapable of governing himself, I fear we may live to see 
another revolution." 

This Shays Rebellion, however, has been somewhat 
over-emphasized by historians as a moving cause of the 
Federal Convention and of the Constitution ; and the 
desire to protect the propertied interests in the future 
against such assaults has been alleged by some writers 
to have been a leading motive inspiring the framers of 
the Constitution. The desire for the prevention of a 
recurrence of such a Rebellion was undoubtedly one of 
the causes for agreement upon the Constitution, but it 
was by no means the leading motive. It will be noted 
that the Rebellion did not really become serious before 
December, 1786 ; but long before that time, the lead- 
ing statesmen of the country had determined that a 
change in the framework of the National Government 
was absolutely necessary, and they had agreed upon 
the general lines on which such a change must be made. 
The Shays Rebellion simply afforded one more proof 
of the disturbing conditions existing in the States and 
of the weakness of the Confederacy which must be 
remedied if the United States were to continue in 
existence. As an object lesson, it shocked into action 
many men who had hitherto been lukewarm towards the 
subject of a Constitutional Convention. 1 

1 Stephen Higginson of Massachusetts wrote to General Knox, Nov. 25, 1786 : 
" I never saw so great a change in the public mind, on any occasion, as has lately 



FEARS OF DISUNION 33 

The first State to take action in conformity with the 
suggestions made by the Commissioners who met at 
Annapolis in September was Virginia. On October 16, 
1786, the Assembly of that State voted to send delegates 
to a Convention to assemble in Philadelphia in the 
succeeding May. This action was taken largely on 
pressure from Madison and Washington; and the 
former wrote to Jefferson, December 4, 1786 : 

"The recommendation from the meeting at Annapolis 
of a plenipotentiary Convention in Philadelphia in May 
next has been well received by the Assembly here. Indeed 
the evidence of dangerous defects in the Confederation has 
at length proselyted the most obstinate adversaries to a 
reform. The unanimous sanction given by the Assembly 
to the inclosed compliance with the recommendation marks 
sufficiently the revolution of sentiment which the experience 
of one year has effected in this country." 

To his intimate friend and former aide-de-camp, Col. 
David Humphreys of Connecticut, Washington now 
wrote, expressing surprise that the Massachusetts and 
other New England Governments had not been repre- 
sented at the Annapolis Convention, especially in view 
of the civil disorders in those States, "for of all others, 
the distractions and turbulent tempers of the people 
would, I should have thought, have afforded the 
strongest evidence of the necessity of competent 
powers somewhere. That the Federal Government is 
nearly, if not quite, at a stand, none will deny. The 
first question then is, shall it be annihilated or sup- 
ported? If the latter, the proposed Convention is an 
object of the first magnitude and should be supported 
by all the friends of the present Constitution. . . . 

appeared in this State as to the expediency of increasing the powers of Congress, not 
merely as to commercial objects, but generally." And on Jan. 20, 1787, he wrote : 
" The friends of Government in the most seditious towns now venture to talk with 
firmness and in a manly tone. Should this spirit pervade the other States, it will 
give rise to sentiments favorable to the Union. . . ." 



34 FEARS OF DISUNION 

I would wish anything and everything essayed, to avert 
the effusion of blood and to avert the humiliating and 
contemptible figure we are about to make on the annals 
of Mankind." * A month later, he wrote to Humphreys 
that if this "second attempt to convene the States . . . 
should also prove abortive, it may be considered as an 
unequivocal evidence that the States are not likely to 
agree on any general measure which is to pervade the 
Union, and of course that there is an end of Federal 
Government." Writing to Madison, on November 5, 
1786, Washington expressed the following patriotic 
views, as to the attitude of mind in which the delegates to 
such a Convention should approach the grave problem : 

"Fain would I hope that the great and most important of 
all subjects, the Federal Government, may be considered 
with that calm and deliberate attention, which the magni- 
tude of it so critically and loudly calls for at this critical 
moment. Let prejudices, unreasonable jealousies, and local 
interests, yield to reason and liberality. Let us look to 
our National character, and to things beyond the present 
moment. No morn ever dawned more favorably than ours 
did; and no day was ever more clouded than the present. 
Wisdom and good examples are necessary at this time to res- 
cue the political machine from the impending storm. Vir- 
ginia has now an opportunity to set the latter, and has 
enough of the former, I hope, to take the lead in promoting 
this great and arduous work. Without an alteration in our 
political creed, the superstructure we have been seven years 

1 See Washington to Humphreys, Nov. 4, Dec. 26, 1786 ; Humphreys to Wash- 
ington, Jan. 20, March 24, April 9, 1787, Life and Times of David Humphreys (1917), 
by Frank Landon Humphreys. 

To Jefferson, Washington wrote, Nov. 12, 1786: "The want of energy in the 
Federal Government ; the pulling of one State and parts of States against another ; 
and the commotions among the Eastern people have sunk the National character 
much below par, and have brought our politics and credit to the brink of a precipice. 
A step or two more must plunge us into inextricable ruin." To David Stuart, he 
wrote, Nov. 19 : " However delicate the revision of the Federal system may appear, 
it is a work of indispensable necessity." To Governor Randolph, he wrote, Nov. 
19 : "Our affairs seem to be drawing to an awful crisis ; it is necessary, therefore, 
that the abilities of every man should be drawn into action in a public line, to rescue 
them, if possible, from impending ruin." 



FEARS OF DISUNION 35 

in raising, at the expense of so much treasure and blood, must 
fall. We are fast verging to anarchy and confusion. . . . 
To you, I am sure, I need not add aught on this subject. 
The consequences of a lax or inefficient government are too 
obvious to be dwelt upon. Thirteen sovereignties pulling 
against each other, and all tugging at the Federal head, will 
soon bring ruin on the whole ; whereas a liberal and energetic 
Constitution, well guarded and closely watched to prevent 
encroachments, might restore us to that degree of respecta- 
bility and consequences, to which we had a fair claim and the 
brightest prospect of attaining." 

Humphreys replied in January, 1787, giving some- 
what pessimistic views as to the attitude of Connecticut 
towards a Convention: "As to a Convention, it has 
not until lately engrossed but little share in the con- 
versation here. I am induced to expect the only good 
it can do will be to demonstrate to the People that a 
number of characters in whom they repose confidence, 
believe seriously we cannot remain as a Nation much 
longer, in the present manner of administering our 
actual Government. The evil appears to me to consist 
more of the untowardly dispositions of the States (who 
make no hesitation in palpably violating the Con- 
federacy whenever it suits their interests) rather than 
in the form of our National Compact as it exists on 
paper." He asserted that the demagogues in Con- 
necticut were persuading the people that their liberties 
were being taken away " by an artful, designing aris- 
tocracy." And he added : "I am as confident as I am 
of my own existence, the States will not comply with the 
recommendation. They have a mortal reluctance to 
divest themselves of the smallest attributes of inde- 
pendent, separate sovereignty." l Similar views were 

1 Ruf us King, then a Member of Congress from Massachusetts, in New York 
wrote to Elbridge Gerry, June 18, 1786, referring to the plans for reforming the Gov- 
ernment, that: "Every man who wishes to strengthen the Federal Government 
and confirm the Union is represented as unfriendly to the liberties of the People. 
These expressions of anxiety for the liberties of the People come now from those 



36 FEARS OF DISUNION 

expressed by Jay, writing to Carmichael in January : 
"The inefficiency of the Federal Government becomes 
more and more manifest ; and how it is to be amended 
is a question that engages the serious attention of the 
best people in all the States. Endeavors are making 
to form a Convention for the purpose, but it is not clear 
that all the States will join in that measure. On this 
and some other great points the public mind is fluctuat- 
ing, though uneasy ; perhaps a few months more may 
produce a greater degree of decision." 1 

To Washington, Jay wrote, January 7, that it was 
not easy to say what should be done ; that it was use- 
less to give any further degree of power to the existing 
Congress, but that he was doubtful about the pro- 
posed Convention consisting of delegates elected by the 
State Legislatures, for, said he, "no alterations in the 
Government should, I think, be made, nor if attempted 
will easily take place, unless deducible from the only 
source of just authority the People" ; moreover, he 
felt that a Convention having power only to recommend 
would "produce endless discussion, perhaps jealousies 
and party heat" ; hence, he favored popular Conven- 
tions in each State to appoint deputies to a General 
Convention which should have power to alter and 
amend the Articles of Confederation. 

General Knox wrote from New York to General 
Benjamin Lincoln in Massachusetts, that the topic of 
a Convention "engrosses a great portion of the attention 
of men of reflection"; and to Stephen Higginson, he 
wrote that "the poor, poor, Federal Government is sick 
almost to death" and that a Convention had been 
proposed " to consult on some plan to prevent our utter 



artful and venal miscreants who withdrew themselves from their country's support 
and existed, her bitterest enemies." 

1 Jay to Carmichael, Jan. 4, 1787 ; Jay to Washington, Jan. 7, 1787. 

* General Henry Knox to Benjamin Lincoln, January 23, 1787. 



FEARS OF DISUNION 37 

"Perhaps this Convention originated and has been imbued 
with ideas far short of a radical reform. Let this have been 
the case, may it, notwithstanding, be turned to an excellent 
purpose. Our views are limited in all things ; we can only 
see from point to point. If men, great men, are sent to the 
Convention, might they not assist the vision of the Southern 
delegates, in such a manner as to induce the adoption of some 
energetic plan, in the prosecution of which we might rise to 
National dignity and happiness ? " 

Knox suggested that the Convention should submit 
a plan for a Constitution to State Conventions who 
should then choose delegates to a new Continental 
Convention having power to decide upon and put in 
force a more General Government; and he especially 
urged Massachusetts to join in the present Convention : l 

". . . The Southern States are jealous enough already. 
If New England, and particularly Massachusetts, should 
decline sending delegates to the Convention, it will operate 
in a duplicate ratio to injure us, by annihilating the rising 
desire in the Southern States of effecting a better National 
system, and by adding to their jealousies of the designs of 
New England. I have dwelt on this subject to you, in order 
that if your sentiments should correspond with mine, that 
you should influence a choice of delegates of such characters 
as would possess the ability of pointing out the road to 
National glory and felicity." 

Stephen Higginson, in reply to Knox, suggested that 
the Convention in Philadelphia be empowered to form 
a Federal Constitution to be submitted to the States in 

1 Knox to Higginson, Jan. 28, 1787. See also Knox to Lincoln, Feb. 14, 1787 : 
"The Convention proposed by the commercial Convention this September, to meet 
in Philadelphia, in May next, engrosses a great portion of the attention of men of 
reflection. Some are for and some against it, but the preponderance of opinion is 
for it. None of the New England States have yet chosen, and it appears quite prob- 
lematical whether any will choose, unless Massachusetts. The Convention will 
be at liberty to consider more diffusively the defects of the present system than Con- 
gress can, who are the executors of a certain system. ... If a differently con- 
structed republican government should be the object, the shortest road to it will be 
found to be the Convention. I hope, therefore, that Massachusetts will choose, 
and that you, Mr. King, and Mr. Higginson should be three of the delegates." 



38 FEARS OF DISUNION 

special State Conventions, and to go into operation 
when ratified by nine : l 

"It is an agreed, and, as I conceive, a clear point, that the 
Confederation is incompetent to the purposes for which it 
was established, the managing the affairs of the Union. 
Powers delineated on paper cannot alone be sufficient. The 
Union must not only have the right to make laws and requi- 
sitions, but it must have the power also of compelling obedi- 
ence thereto, otherwise, our Federal Constitution will be a 
mere dead letter. To delegate rights to Congress, and at the 
same time to withhold from them the means of exercising 
those rights, is trifling and absurd. The powers of the 
Union must be increased, and those of the States individually 
must be abridged ; they cannot both be perfectly sovereign 
and independent at the same time ; the Federal must have 
power to control the individual Governments of the States, 
in some points at least; and unless the States shall soon 
consent to part with some of their rights as Sovereign States, 
they will very soon be involved in one general scene of dis- 
order and distress. The Government of the Union must 
be the result of deliberation and choice, or of necessity and 
chance. By an early adoption of a liberal and extensive 
system of Government, we may secure to ourselves and 
posterity every rational felicity ; and by wisely conceding a 
part of our separate independency, and concentrating our 
views to the Union, we may avert these public calamities, 
which now threaten the dissolution of the Governments of 
the several States, and which may eventually involve them 
in all horrors of a civil War. But in order to this, our 
present Federal Government must be critically examined, and 
the causes of the indifference or opposition of some of the 
States in the Union to Federal measures be well understood, 
or we never shall be able precisely to determine wherein 
it is deficient nor discover the true and proper remedies 
to be applied. . . . There are men in the several States 
of first rate abilities, who cannot be persuaded to go to Con- 
gress, or to engage permanently in public life ; but they may 

1 See also Higginson to Knox, Feb. 8, 13, 1787. 



FEARS OF DISUNION 39 

be prevailed on to enter upon so important and special a 
business, as the forming a new Federal Constitution. The 
collective wisdom of a special Convention may probably 
therefore be greater than that of Congress." 

It is to be noted that both Knox and Higginson 
particularly stressed the necessity of submitting the 
new Constitution to the people in State Conventions, 
rather than to the State Legislatures. It is an ex- 
tremely significant fact that, throughout, the advo- 
cates of the new Constitution believed and trusted in 
the people and in popular action, to a far greater extent 
than did their opponents, who preferred action by the 
State Legislatures. 1 

Rufus King wrote from New York to Elbridge Gerry, 
in February, 1787 : 2 

"For a number of reasons, although my sentiments are 
the same as to the legality of this measure, I think we ought 
not to oppose, but to coincide with this project. Let the 

1 To Nathan Dane, Higginson wrote, March 3, 1787: "Though this measure 
may not appear to be perfectly regular, and Conventions are not known any more 
in the form of the Federal Government, than in that of this State, yet, I confess, I 
am full in the idea of its expediency, from a conviction that there is no other mode 
that can give us any chance of obtaining a Government capable of managing the 
affairs of the Union. It is, to be sure, far from being certain, whether such a Gov- 
ernment can be established by means of the intended Convention, or whether any 
advantage to the Union will result from it. But as it is clear, in my mind, that we 
can not long exist under our present system, and that unless we soon acquire more 
force to the Union by some means or other, insurgents will arise and eventually take 
the reins from us, I am for trying any measure that promises even a possibility of 
success. We must either brace up the powers of the Union to a degree capable of 
supporting and encouraging the affairs of the nation with dignity and energy, and 
this by an act of deliberation and choice, or we shall inevitably be thrown into gen- 
eral confusion and convulsions, which will result in one or more Governments, estab- 
lished with the loss of much blood, violent and despotic in its nature, and the effect 
of necessity and chance." 

2 King to Gerry, Feb. 11, 18, 1787. Up to this time, King had been doubtful 
as to the value of a Convention. Replying to a letter written by John Adams from 
London, June 14, 1786, in which Adams had said that "the proposed Convention, 
it is to be hoped, will do good, but I know not why Congress could not have done as 
well or better," King had written, October 2, 1786 : "Whether the States will accede 
to the proposition of a Convention in May is yet uncertain. Congress, I think, will 
not interfere in such a manner as to patronize the project. I am fully convinced 
that your opinion is a just and political one, that Congress can do all a Convention 
can, and certainly with more safety to original principles." On January 7, 1787, 



40 FEARS OF DISUNION 

appointment be numerous, and if possible let the men have a 
good knowledge of the Constitutions and various interests 
of the several States, and of the good and bad qualities of the 
Confederation. Events are hurrying to a crisis ; prudent 
and sagacious men should be ready to seize the most favour- 
able circumstances to establish a more permanent and vig- 
orous Government. I hope you will be at leisure to attend 
the Convention. Madison is here. I presume he will be 
preparing himself for the Convention ; you know he is a 
delegate from Virginia ; he professes great expectation as to 
the good effects of the measure." 

William Livingston, Governor of New Jersey, wrote 
to Elijah Clarke, February 17, 1787 : ' 

"I am really more distressed by the posture of our public 
affairs than I ever was by the most gloomy appearances dur- 
ing the late war. We do not exhibit the virtue that is neces- 
sary to support a republican government ; and without the 
utmost exertions of the more patriotic part of the com- 
munity, and the blessing of God upon their exertions, I fear 
that we shall not be able, for ten years from the date of this 
letter, to support that independence which has lost us so 
much blood and treasure to acquire. . . . Our situation 
is truly deplorable, and without a speedy alteration of meas- 
ures, I doubt whether you and I shall survive the existence 
of that liberty for which we have so strenuously contended." 

Meanwhile, some of the States, without waiting for 
Congress to act upon the recommendation of the 
Annapolis Convention, had voted to elect delegates to 

King had written to Gerry, notifying him that Virginia and Pennsylvania had 
appointed delegates to the coming Convention but that Jay and others in New 
York were opposed to the measure " not alone because it is unauthorized, but from 
an opinion that the result will prove inefficacious"; and he wrote: "If Massa- 
chusetts should send deputies, for God's sake, be careful who are the men ; the 
times are becoming critical; a movement of this nature ought to be carefully 
observed by every member of the community.'* 

1 Memoirs of the Infe of William Livingston (1833), by Theodore Sedgwick, p. 
462. Edmund Randolph, Governor of Virginia, wrote to Governor William Living- 
ston of New Jersey, December 6, 1786, transmitting to him a copy of the Virginia 
Act, appointing delegates to the new Convention and stating his "anxiety for the 
well being of the Federal Government", begged him to "give a zealous attention 
to the present American crisis." 



FEARS OF DISUNION 41 

attend the new Convention to be held in Philadelphia ; 
Virginia, on October 16, 1786; New Jersey, on No- 
vember 3 ; New Hampshire, on November 27 ; Penn- 
sylvania, on December 30 ; North Carolina, on 
January 6, 1787; Delaware, on February 3, and 
Georgia, on February 10. New York and the New 
England States had delayed action, chiefly because of 
their doubts of the legality of any action looking 
towards amendment of the Confederation which did 
not originate with Congress. Edward Carrington, a 
Member of Congress from Virginia, wrote to Madison, 
December 18, 1786, that the reasons given by the 
Massachusetts Members for failure to support the idea 
of a Convention were that "the mode of amending the 
Confederation is provided by the Act itself. Amend- 
ments are to originate with Congress and be agreed to 
by the States, and that it would derogate from the 
dignity and weight of that body to take a secondary 
position in the business"; but, he added, wisely: 
"This is an elevated idea, and in an efficient sovereignty 
would be a wise one. The truth is, we have not a 
Government to wield and correct, but must pursue the 
most certain means for obtaining one." Madison 
wrote to Jefferson, February 15, as to the "respectable 
appointments" already made, but adding that: 

"New York has not yet decided on the point. Her 
Assembly has just rejected the impost, which has an unpro- 
pitious aspect. It is not clear, however, that she may not 
yet accede to the other measure. Connecticut has a great 
aversion to Conventions, and is otherwise habitually dis- 
inclined to abridge her State prerogatives. Her concurrence 
nevertheless is not despaired of. Massachusetts, it is said, 
will concur, though hitherto not well inclined. New Hamp- 
shire will probably do as she does. Rhode Island can be 
relied on for nothing that is good. On all great points, she 
must sooner or later bend to Massachusetts and Connecticut." 



42 FEARS OF DISUNION 

Jay, who until Congress should take action was 
doubtful as to the advisability or chance of success of 
the Convention, wrote to John Adams, February 21 : 

"Our Government is unequal to the task assigned it, and 
the people begin also to perceive its inefficiency. The Con- 
vention gains ground . New York has instructed her delegates 
to move in Congress for a recommendation to the States to 
form a Convention ; for this State dislikes the idea of a Con- 
vention, unless countenanced by Congress. I do not prom- 
ise myself much further immediate good from the measure, 
than that it will tend to approximate the public mind to the 
changes which ought to take place. It is hard to say what 
those changes should be, exactly. There is one, however, 
which I think would be much for the better, viz. : to dis- 
tribute the Federal sovereignty into its three proper depart- 
ments of Executive, Legislative, and Judicial ; for that 
Congress should act in these different capacities was, I think, 
a great mistake in our policy/* 

On this same day (February 21), however, Congress 
passed the following Resolve : l 

"That in the opinion of Congress, it is expedient, that on 
the second Monday in May next, a Convention of delegates, 
who shall have been appointed by the several States, be held 
at Philadelphia, for the sole purpose of revising the Articles 
of Confederation, and reporting to Congress and the several 
Legislatures, such alterations and provisions therein, as shall, 
when agreed to in Congress, and confirmed by the States, 
render the Federal Constitution adequate to the exigencies 
of Government, and the preservation of the Union." 

1 This Resolve was substituted, on motion of King and Dane from Massachu- 
setts, for a more pronounced declaration originally moved by New York members 
as follows : " Congress, having had under consideration the letter of John Dickin- 
son, Esq., chairman of the commissioners who assembled at Annapolis, during the 
last year ; also the proceedings of the said commissioners, and entirely coinciding 
with them, as to the inefficiency of the Federal Government, and the necessity of 
devising such farther provisions as shall render the same adequate to the exigencies 
of the Union, do strongly recommend to the different Legislatures to send forward 
delegates, to meet the proposed Convention, on the second Monday in May next, at 
the city of Philadelphia." 



FEARS OF DISUNION 43 

This action by Congress changed the attitude of 
many who had hitherto opposed a Convention, and 
influenced the States which had hitherto been reluctant 
to appoint delegates New York acting on February 
28, Massachusetts on March 10, Maryland on April 23, 
and Connecticut on May 12. 1 

On the day when Congress passed its Resolve, Madi- 
son wrote from New York to General Washington that 
it had "been much divided and embarrassed on the 
question whether its taking an interest in the measure 
would impede or promote it. On one side, it has been 
urged that some of the backward States have scruples 
against acceding to it without some constitutional 
sanction ; on the other, that other States will consider 
any interference of Congress as proceeding from the 
same views which have hitherto excited their jealousies. 
... I have not been here long enough to gather the 
general sentiments of leading characters touching our 
affairs and prospects. I am inclined to hope that they 
will gradually be concentered in the plan of a thorough 
reform of the existing system. Those who may lean 
towards a Monarchical Government, and who, I sus- 
pect, are swayed by very indigested ideas, will of 
course abandon an unattainable object whenever a 
prospect opens of rendering the Republican form com- 
petent to its purposes. Those who remain attached to 
the latter form must soon perceive that it cannot be 
preserved at all under any modification which does not 
redress the ills experienced from our present establish- 
ments." Washington replied to Madison's letter, 
March 31, expressing his doubts whether the Monarchi- 

1 In a letter from New York in Independent Gazetteer (Phil.), March 16, 1787, 
it was said: "You have seen the resolution of Congress approving a Convention 
for revising the Confederation. This measure was adopted to reconcile the five 
Eastern States to the sending deputies, which they thought unconstitutional without 
the recommendation of Congress. It is believed that all the States except Con- 
necticut will appoint, and I think they will also." 



44 FEARS OF DISUNION 

cal tendencies extended far, and also his hopes that the 
Convention would probe deep into the existing defects 
of the Government and would essay a thorough re- 
form : 

"I am fully of opinion that those who lean to a Monarchi- 
cal Government have either not consulted the public mind, 
or that they live in a region, which (the levelling principles 
in which they were bred being entirely eradicated) is much 
more productive of Monarchical ideas, than are to be found 
in the Southern States, where, from the habitual distinctions 
which have always existed among the people, one would have 
expected the first generation and the most rapid growth of 
them. I am also clear, that even admitting the utility, nay, 
necessity of the form, yet that the period is not arrived for 
adopting the change without shaking the peace of this coun- 
try to its foundation. That a thorough reform of the pres- 
ent system is indispensable, none who have capacities to 
judge, will deny ; and with hand (and heart) I hope the 
business will be essayed in a full Convention. ... I con- 
fess, however, that my opinion of public virtue is so far 
changed, that I have my doubts whether any system, with- 
out the means of coercion in the sovereign, will enforce due 
obedience to the ordinances of a General Government ; with- 
out which every thing else fails. Laws or ordinances unob- 
served, or partially attended to, had better never have been 
made; because the first is a mere nihil, and the second is 
productive of much jealousy and discontent. But what 
kind of coercion, you may ask. This indeed will require 
thought, though the non-compliance of the States with the 
late requisition is an evidence of the necessity. It is some- 
what singular that a State (New York) which used to be 
foremost in all federal measures, should now turn her face 
against them in almost every instance. ... I am desirous 
of knowing how this matter is, as my wish is that the Con- 
vention may adopt no temporizing expedients, but probe 
the defects of the Constitution to the bottom, and provide 
a radical cure, whether they are agreed to or not. A con- 
duct of this kind will stamp wisdom and dignity on their 



FEARS OF DISUNION 45 

proceedings, and hold up a light which sooner or later will 
have its influence." 

To Edmund Pendleton, Madison wrote, February 28, 
that it now seemed probable that the Convention 
would take place "and that it will be a pretty full one. 
What the issue of it will be, is among the other arcana 
of futurity and nearly as inscrutable as any of them. 
In general, I find men of reflection much less sanguine 
as to the new than despondent as to the present sys- 
tem.'* He then expressed the fear that was so preva- 
lent, and which was a very leading motive in the desire 
for the formation of a new Constitution, the fear lest, 
otherwise, there might be a move towards Monarchy or 
division of the Confederacy. 

"If the approaching Convention should not agree on some 
remedy, I am persuaded that some very different arrange- 
ment will ensue. The late turbulent scenes in Massachu- 
setts and infamous ones in Rhode Island have done inex- 
pressible injury to the republican character in that part of 
the United States ; and a propensity towards Monarchy is 
said to have been produced by it in some leading minds. 
The bulk of the people will probably prefer the lesser evil of 
a partition of the Union into three more practicable and 
energetic Governments. The latter idea I find, after long 
confinement to individual speculations and private circles, 
is beginning to show itself in the newspapers. But tho* it 
is a lesser evil, it is so great a one that I hope the danger of 
it will rouse all the real friends of the Revolution to exert 
themselves in favor of such an organization of the Confeder- 
acy as will perpetuate the Union, and redeem the honor of 
the Republican name." 

Meanwhile, many statesmen had been pondering on 
the nature of the necessary changes in the framework of 
Government and of the theory on which they must be 
based. That additional power must be given to Con- 
gress, especially power over commerce, was generally 



46 FEARS OF DISUNION 

acknowledged; and as Jefferson phrased it: "The 
politics of Europe rendered it indispensably necessary 
that with respect to everything external we be one 
nation firmly hooped together ; interior government is 
what each State should keep to itself." 1 That the 
three functions of Government the Legislative, 
Executive, and Judicial must be vested in separate 
bodies was the first principle agreed upon by several of 
the leaders ; and Jay wrote to Jefferson, as early as 
August 18, 1786, that : 

"I have long thought, and become daily more convinced, 
that the construction of our Federal Government is fun- 
damentally wrong. To vest Legislative, Judicial, and Exec- 
utive power in one and the same body of men, and that too 
in a body daily changing its members, can never be wise. 
In my opinion, those three great departments of sovereignty 
should be forever separated, and so distributed as to serve 
as checks on each other. But these are subjects that have 
long been familiar to you, and on which you are too well 
informed not to anticipate everything that I might say on 
them. ..." 

A development of this idea in greater detail was 
written by Rufus King, a Member of Congress from 
Massachusetts, to Jonathan Jackson of that State, 
September 3 : 2 

"It should be remembered that the pressure of a common 
calamity which induced the present Confederation is now 
removed, that the individual States are governed by their 
particular interests. These stand, or are supposed to stand, 
in opposition to each other, and, so long as the idea obtains, 
will prevent unanimity in any opinion concerning the cor- 
roboration of the Federal Constitution. Others, and by no 
means the least respectable, answer that nothing can be 

1 Jefferson to Madison, Oct. 8, 1786. See Life and Times of James Madison 
(1859) by William C. Rives, II, 31, 34, 41, 68, for views of the leaders as to power 
over commerce. 

8 Mass. Hist. Soc. Proc. (1915). XLIX. 



FEARS OF DISUNION 47 

done in our present form, that the error lies in the original 
plan. Diminish, say they, the number of States, let those 
which are to be established be nearly equal, reform their 
Constitutions, give their Governments more energy, the 
laws more stability, the magistrates greater authority and 
responsibility. Let the State Governments be confined to 
concerns merely internal, and let there be a Federal Govern- 
ment, with a vigorous Executive, wise Legislature, and 
independent Judicial." 

Jefferson, writing to Madison, December 16, 1786, 
presented the same ideas as follows : 

"I find by the public papers that your Commercial Con- 
vention failed in point of representation. If it should pro- 
duce a full meeting in May and a broader reformation, it 
will still be well. To make us one nation as to foreign con- 
cerns, and keep us distinct in domestic ones, gives the out- 
line of the proper division of power between the general and 
particular Governments. But to enable the Federal head 
to exercise the power given it to best advantage, it should be 
organized, as the particular ones are, into Legislative, Execu- 
tive, and Judiciary. The first and last are already separated. 
The second should also be. . . . " 

To Jefferson in Paris, Madison wrote, March 19 : 1 

"What may be the result of this political experiment can- 
not be foreseen. The difficulties which present themselves 
are on one side almost sufficient to dismay the most sanguine, 
whilst on the other side, the most timid are compelled to 
encounter them by the mortal diseases of the Constitution. 
. . . They are at present marked by symptoms which are 
truly alarming, which have tainted the faith of the most 
orthodox republicans, and which challenge from the votaries 
of liberty every concession in favor of stable Government, 

1 To James Madison* Sr., Madison wrote April 1, that : "Notwithstanding this 
prospect of a very full and respectable meeting, no very sanguine expectations can 
well be indulged. The probable diversity of opinions and prejudices and of sup- 
posed or real interests among the States renders the issue totally uncertain. The 
existing embarrassments and mortal diseases of the Confederacy form the only 
ground of hope that a spirit of concession on all sides may be produced by the gen- 
eral chaos, or at least partition of the Union which offer itself as the alternative.'* 



48 FEARS OF DISUNION 

not infringing fundamental principles, as the only security 
against an opposite extreme of our present situation." 

He stated four principles which he believed essential 
to embody in a new Government : first, ratification 
by the people themselves rather than by State Leg- 
islatures ; second, grant of power to the National 
Legislatures to negative any Act of a State Legislature 
in order to preserve the boundary between the Federal 
and the State powers; third, proportional instead of 
equal representation of the States ; fourth, organization 
of the Federal powers so as not to blend those which 
ought to be exercised by distinct departments of Gov- 
ernment. 

On March 27, Edmund Randolph wrote to Madison, 
stating his views as to action the coming Convention 
might take : 

"I have turned my mind somewhat to the business of 
May next, but am hourly interrupted. At present, I con- 
ceive 1. that the alterations should be grafted on the 
old Confederation. 2. That what is best in itself, not 
merely what can be obtained from the Assemblies, be 
adopted. 3. That the points of power to be granted be so 
detached from each other, as to permit a State to reject one 
part, without mutilating the whole. With these objects, 
ought not some general proposition to be prepared for feeling 
the pulse of the Convention on the subject at large ? Ought 
not an address to accompany the new Constitution ? " 

In reply to this, Madison wrote to Randolph, on 
April 8, elaborating his Jefferson letter, and setting 
forth a comprehensive -scheme for a National Govern- 
ment, acting upon individuals and not upon States. 
The first plan for such a form of Government had been 
presented by Pelatiah Webster of Philadelphia, who, on 
February 16, 1783, published a pamphlet entitled, "A 
Dissertation on the Political Union and Constitution of 
the Thirteen States of North America, which is Neces- 



FEARS OF DISUNION 49 

sary to Their Preservation and Happiness." There is 
no evidence, however, that Madison ever saw this 
pamphlet. 1 To Randolph, he now said : "I think 
with you it will be well to retain as much as possible of 
the old Confederation, tho' I doubt whether it may not 
be best to work the valuable articles into a new system, 
instead of engrafting the latter on the former." Madi- 
son thus took the bold step of announcing that the 
work of the Convention should be to frame a new 
Constitution and not merely to alter over the old one. 
And this idea he further developed in a long letter to 
Washington, a week later, April 16, in which he set 
forth "some outlines of a new system", and in which he 
^stated succinctly the whole theory on which the Con- 
stitution, as finally drafted, was based : 

"Conceiving that an individual independence of the 
States is utterly irreconcilable with their aggregate sover- 
eignty, and that a consolidation of the whole into one sim- 
ple republic would be as inexpedient as it is unattainable, 

1 Prof. Edward Charming in his History of the United States, III, 477, note, says 
that Prof. Max Farrand in a note to him states that he has "not a scrap of evidence 
that Webster's dissertation directly influenced a single member of the Convention. 
In fact, I have found practically no reference to it at that time." In Amer. Hist. 
Rev., XVII, 1(J2, Farrand states that students "have generally believed that the 
American Constitution would have taken its present form if the pamphlet in ques- 
tion had never been written, or indeed if Webster had never lived." Hannis Tay- 
lor in The Science of Jurisprudence, in 1908, stated that Pelatiah Webster's pamphlet 
was the direct source of the Constitution ; but he paid no attention to the fact that 
Webster's only conception of enforcement of National laws in case of disobedience 
by individuals, and his only remedy was, for Congress to summon such individuals 
to appear before it and for Congress to fine and punish ; and in case of resistance to 
National laws by a State, for Congress to employ force against the State. It is to 
be noted that Madison in his Preface to Debates in the Convention, written about 
1835, admits that Noah Webster of Connecticut had in 1785 proposed in one of his 
publications " a new system of government which should act, not on the States, but 
directly on individuals, and vest in Congress full power to carry its laws into execu- 
tion." Noah Webster's essay, entitled Plan of Policy for Improving the Advan- 
tages and Perpetuating the Union of the American States (1785), presented no detailed 
scheme of a Constitution, but it suggested the correct theory for a new Government 
as follows : " Let the Government of the United States be formed upon the general 
plan of government in laws of the several States. . . . The general concerns of 
the Continent may be reduced to a few heads ; but in all the affairs that respect the 
whole, Congress must have the same power to enact laws and compel obedience 
throughout the Continent as the Legislatures of the several States have in their 
respective jurisdictions." 



50 FEARS OF DISUNION 

I have sought for some middle ground, which may at 
once support a due supremacy of the National authority 
and not exclude the local authorities wherever they can be 
subordinately useful." 

To Edmund Pendleton, Madison wrote, April 2 : * 

"The absence of one or two States however will not mate- 
rially affect the deliberations of the Convention. Disagree- 
ment in opinion among those present is much more likely to 
embarrass us. The nearer the crisis approaches, the more I 
tremble for the issue. The necessity of gaining the concur- 
rence of the Convention in some system that will answer the 
purpose, the subsequent approbation of Congress, and the 
final sanction of the States, presents a series of chances, 
which would inspire despair in any case where the alterna- 
tive was less formidable. The difficulty too is not a little 
increased by the necessity which will be produced by en- 
croachments on the State Constitutions, of obtaining not 
merely the assent of the Legislatures, but the ratification 
of the people themselves. Indeed, if such encroachments 
could be avoided, a higher sanction than the Legislative 
authority would be necessary to render the laws of the Con- 
federacy paramount to the acts of its members." 

Meanwhile, other statesmen were expressing their 
views of the situation. Richard Henry Lee, in a letter 
to Randolph declining appointment as a delegate, 
wrote, March 26 : that "there are so many gentlemen 

1 Madison wrote to Jefferson, April 23, 1787 : "The prospect of a full and re- 
spectable Convention grows stronger every day. Rhode Island alone has refused 
to send Deputies. Maryland has probably appointed by this time. Of Connecti- 
cut alone doubts are entertained. The anti-federal party in that State is numerous 
and persevering. It is said that the elections which are now going on are rather 
discouraging to the advocates of the Convention. Pennsylvania has added Dr. 
Franklin to her deputation. There is some ground to calculate on the attendance of 
General Washington. Our Governor, Mr. Wythe, Mr. Blair, and Col. Mason will 
pretty certainly attend. The last, I am informed, is renouncing his errors on the 
subject of the Confederation, and means to take an active part in the amendment of 
it. Mr. (Patrick) Henry pretty soon resigned the undertaking. General Nelson 
was put into his place, who has also declined. He was succeeded by Mr. R. H. Lee, 
who followed his example. Doctor M'Clurg has been since appointed, and as he 
was on the spot must have been previously consulted." See also Madison to Wash- 
ington, March 18, 1787, as to Henry's resignation. 



FEARS OF DISUNION 51 

of good hearts and sound heads appointed to the 
Convention at Philadelphia that I feel a disposition 
to repose with confidence in their determinations." l 
Edward Rutledge of South Carolina wrote to Richard 
Henry Lee, March 27 : 

"We have agreed to send deputies to the Continental 
Convention. My brother, who is truly federal, is among 
the number of gentlemen, none of whom, I am convinced, 
will yield to him in zeal for Continental measures. ... It 
is said that the Eastern States will not send delegates to the 
Convention. If this be their determination, they must 
change it. What, although they have experienced domestic 
convulsions from their State Conventions, can they not fore- 
see that a restoration of their trade will afford an outlet for 
their restless spirits and remove, with the poverty of their 
situation, an inclination to disturb the Government ? They, 
of all others, are more immediately interested in vesting 
powers in the United Council. Animate them, my good 
Sir, to a sense of their duty and of their interest." 

David Ramsay of South Carolina wrote to Jefferson, 
April 7 : 2 

"Our Governments in the Southern States are much more 
quiet than in the Northern, but much of our quiet arises 
from the temporizing of the Legislature in refusing legal 
protection to the prosecution of the just rights of the credi- 
tors. Our eyes now are all fixed on the Continental Con- 
vention to be held in Philadelphia, in May next. Unless 
they make an efficient Federal Government, I fear that the 

1 Letters of Richard Henry Lee (ed. by J. C. Ballagh, 1914) II, 415. See also Lee 
to Thomas Lee Shippen, April 17, 1787 : " I feel and see the unhappy state of 
public affairs that you describe, but I hope for amendment. We have everywhere 
young men coming forward with worth and talents that promise good things. In 
May next a Convention is to meet in Philadelphia for the purpose of amending 
our Federal Constitution from this source, perhaps we may derive some good." 
2 Ralph Izard of South Carolina wrote to Jefferson, April 4, 1787 : "If the powers 
of Congress can be so extended as to give efficacy to the decisions of that body, the 
measure will assuredly contribute to the security and happiness of the Continent. 
At present, our affairs are by no means in a desirable state." South Carolina His- 
torical and Genealogical Magazine (1901), II, 199. 



52 FEAKS OF LHSUJNIOJN 

end of the matter will be an American Monarchy, or rather 
three or more Confederacies." 

Benjamin Franklin wrote to Jefferson, April 19 : 

"Our Federal Constitution is generally thought defective 
and a Convention, first proposed by Virginia, and since rec- 
ommended by Congress, is to assemble here next month, to 
revise it and propose amendments. The delegates generally 
appointed, as far as I have heard of them, are men of charac- 
ter for prudence and ability, so that I hope good from their 
meeting. Indeed, if it does not do good, it must do harm, 
as it will show that we have not wisdom enough among us 
to govern ourselves ; and will strengthen the opinion of 
some political writers, that popular governments cannot 
long support themselves." 

James Dawson of Virginia wrote to Madison, April 
15 : "Much depends on the Convention in May. The 
attention of almost every person is fixed on that body ; 
and should the issue not be successful, which I am 
sorry to find you suspect, I fear there will be an end 
to the General Confederacy." Rufus King wrote to 
Theophilus Parsons in Massachusetts, April 8 : 

"I wish it was in my power to say that the affairs of the 
Union bore a more favorable appearance than when I saw 
you last ; but the contrary is the fact. What the Conven- 
tion may do at Philadelphia is very doubtful. There art 
many well disposed men from the Southern States who will 
attend the Convention ; but the projects are so various, and 
all so short of the best, that my fears are by no means infe- 
rior to my hopes on this subject." 

Edward Carrington of Virginia wrote to Jefferson, 
April 24 : 

..." Rhode Island is at all points so antifederal and con- 
temptible that her neglecting the invitation will probably 
occasion no demur whatever in the proceedings. . . . Vari- 
ous are the conjectures as to the issue of this meeting, and 



FEARS OP DISUNION 53 

still more various are the suggested remedies to the defects 
of our system. I am rather a zealot in the measure, because 
it will operate, at least as an alarm ; but whether it will be 
productive of any immediate effects may be doubtful. Per- 
haps that experiment has not yet been made of the present 
system, which could discover its defects or point to their 
remedies. I am certain it is very imperfect, but, at the 
same time, there was evident causes for their failure, other 
than those of defectiveness in the constructure. The best 
of governments, like other things, can prosper alone by due 
attention. America was placed in possession of peace and 
independence, under circumstances which have not only de- 
prived her political systems of the necessary care of her cit- 
izens but exposed her to the injurious designs of men whose 
interest it has been to destroy the efficiency of Government. 
A great proportion of the people, being loaded with debt, 
have found an interest in promoting measures directly op- 
posed to good government, and have been solicitous to direct 
the public affairs ; whilst better men have been inactive or 
engrossed by the alluring invitations of ease and plenty in 
our vast Western and Southern regions. . . . Genl. Wash- 
ington, it is hoped, will attend, but there is good reason to 
apprehend the contrary his state of health is not a good 
one. . . . The Convention will be productive of things worth 
communicating to you and I will do myself the pleasure to 
write by the first opportunity that offers after its com- 
mencement." 

Jay wrote to Jefferson, April 25, as to the Con- 
vention: "I wish their councils may better our situa- 
tion; but I am not sanguine in my expectations. 
There is reason to fear that our errors do not proceed 
from want of knowledge; and, therefore, that reason 
and public spirit will require the aid of calamity to 
render their dictates effectual/' l And John Adams 
wrote from London to Jay, May 8 : 

1 Washington had written similarly to Knox, March 8, 1787, that "it is among 
the evils, and perhaps is not the smallest, of democratic Governments that the people 
must always feel before they will see." 



54 FEARS OP DISUNION 

"The Convention at Philadelphia is to consist of members 
of such ability, weight, and experience that the result must 
be beneficial to the United States. The settlement of so 
many great controversies such as those between Massa- 
chusetts and New York, Pennsylvania, and Connecticut, 
New York and Vermont, &c., show that the Union has great 
weight in the minds of the people. It is, indeed, an object 
of such magnitude that great sacrifices ought to be made to 
its preservation. The consequences of a division of the Con- 
tinent cannot be foreseen fully, perhaps, by any man ; but 
the most shortsighted must perceive such manifest danger, 
both from foreign Powers and from one another, as cannot 
be looked upon without terror." 

Such were the sentiments of the public men of the 
day. Such were their alarms at the existing situation, 
and such were their hopes that some method might be 
found to preserve the Union. That they realized the 
disastrous economic conditions, that they feared the 
effect of prevailing unwise and unjust State legislation, 
and that they expected that a more adequate form of 
Government would bring an increase of economic 
prosperity for all classes in the community, cannot be 
doubted. But it is equally indubitable that their lead- 
ing motive in desiring a new Constitution was their con- 
viction that, without it, a dissolution of the Union and 
disappearance of republican government were inevi- 
table. 

NOTE. Unless special citations of authority are given in the footnotes, all 
letters quoted in the text of this book will be found in Bancroft's History of the 
Formation of the Constitution; Farrand's Records of the Federal Convention; Docu- 
mentary History of the Constitution; or in one of the other collected editions of 
letters of American statesmen, contained in Appendix A infra. 



CHAPTER TWO 

THE DELEGATES, THE PUBLIC, AND THE PRESS 

To attend the Federal Convention, the twelve States 
(other than Rhode Island) had appointed, through 
their Legislatures or their Governors, a total of seventy- 
four delegates, of whom nineteen had either declined to 
accept or failed to come to Philadelphia. 1 What had 
been the experience of the fifty-five men who actually 
attended ? What fitted them for their great task ? 

In the first place, it is to be remarked that thirty-nine 
of them had already served in the Congress of the 
Confederation ; eight of them had signed the Declara- 
tion of Independence ; 2 eight had helped to form their 
State Constitutions; five had been members of the 
Annapolis Convention in September, 1786; seven had 
been Chief Executives of their States ; and twenty -one 
had fought to maintain the independence of their 
country in the Revolutionary War. 

At least thirty-three had been lawyers, of whom ten 
had served as State Judges ; eight were engaged in 
mercantile or other business ; six were planters ; three 
had been physicians. About one half were graduates 

1 1 accept the list as given in The Records of the Federal Convention (1911), by Max 
Farrand, III, 557-559. The list of delegates printed in the Journal, Acts and Pro- 
ceedings of the Convention (1819), published officially by the Secretary of State, con- 
tained the names of only sixty-five delegates, but it omits one from Connecticut, 
five from Maryland, two from Virginia, and one from South Carolina, who were 
appointed but declined to serve. For full list, see Appendix B. 

2 Elbridge Gerry, Roger Sherman, Benjamin Franklin, Robert Morris, George 
Clymer, James Wilson, George Read, George Wythe. Roger Sherman had the 
unique distinction of signing all three of the great American documents the 
Declaration of Independence, the Articles of Confederation, and the Constitution. 



56 THE DELEGATES, PUBLIC, AND PRESS 

of Colleges nine coming from Princeton, and Yale, 
Harvard, Columbia, University of Pennsylvania and 
William and Mary being also represented, as well as 
Oxford and the Scotch Universities. 

It is interesting to note that the Convention was a 
meeting of comparatively young men ; six of the fifty- 
five were under thirty-one years of age Dayton (the 
youngest, being twenty-six), Mercer, Charles Pinckney, 
Spaight, Da vie, and Hamilton ; only twelve men were 
over fifty-four years of age Read, Washington, Blair, 
Dickinson, Carroll, Johnson, Wythe, Mason, Living- 
ston, and (regarded as the three Nestors) Jenifer aged 
sixty-four, Sherman aged sixty-six, and Franklin aged 
eighty-one. 1 

It is unnecessary to call the roll of these delegates in 
detail. 2 The ablest delegations came from five States 
and comprised among their number Washington, 
Madison, and Randolph of Virginia ; Ruf us King, Na- 
thaniel Gorham, and Elbridge Gerry of Massachusetts ; 
Benjamin Franklin, James Wilson, Gouverneur Morris, 
and Robert Morris of Pennsylvania ; Roger Sherman, 
Oliver Ellsworth, and William Samuel Johnson of 
Connecticut; and John Rutledge, Charles Pinckney, 
Gen. Charles C. Pinckney and Pierce Butler of South 
Carolina. These were the leaders in the formation of 
the Constitution. Amongst others who were prominent 
but had a less active part in its framing were Alexan- 
der Hamilton of New York, David Brearley and William 
Paterson of New Jersey, John Dickinson of Delaware, 
Hugh Williamson and William R. Davie of North 

1 Note the change in viewpoint as to age. Richard Henry Lee, writing to George 
Mason, May 15, 1787, said : "I am glad ... to find on this occasion that so many 
gentlemen of competent years are sent to the Convention, for certainly youth is the 
season of credulity, and confidence a slow plant in an aged bosom/' 

2 For the most complete account of the delegates, see History of the Celebration 
of the 100th Anniversary of the Constitution (1889), by Hampton L. Carson; History 
of the Formation of the Constitution (1882), by George Bancroft. See also An Intro- 
duction to the Study of the American Constitution (1026), by Charles . Martin. 



THE DELEGATES, PUBLIC, AND PRESS 57 

Carolina, and Abraham Baldwin of Georgia. The 
most active opponent of the Constitution in the Con- 
vention was Luther Martin of Maryland. Of the other 
delegates, many were men of talent and character; 
others were of more mediocre calibre. Ten men stand 
out as chiefly responsible for the form which the Con- 
stitution finally took Madison, Randolph, Franklin, 
Wilson, Gouverneur Morris, King, Rutledge, Charles 
Pinckney, Ellsworth, and Sherman. 

Madison, born in 1751, was thirty-six years old at the 
time of the Convention. A graduate of Princeton, he 
had originally studied for the ministry, but for eleven 
years had devoted his life to deep and comprehensive 
study of the theory, history, and practice of govern- 
ments ; he had been a member of the Virginia Assembly 
which framed the first State Constitution; a Member 
of Congress from Virginia from 1780 to 1784, and a 
member of the Virginia Assembly from 1784 to 1787. 
Of him, Fisher Ames, who served with him in Congress 
a few years later, wrote that "he is a thorough master 
of almost every public question that can arise, or he 
will spare no pains to become so. He is well versed in 
public life, was bred to it, and has no other profession. 
... It is rather a science than a business with him." 
A striking phrase versed in the "science" rather 
than the "business" of public life ! No one who reads 
Madison's letters and his speeches in the debates will 
wonder that he has been termed, without dissent, the 
"Father of the Constitution." 

Edmund Randolph was born in 1753, being thirty- 
four years old. He had been a member of the Virginia 
Assembly which framed the first State Constitution, 
Attorney General, and Governor of the State. Of 
Randolph, his fellow delegate, William Pierce of 
Georgia wrote that he united "all the accomplish- 
ments of the scholar and the statesman. . . . He has 



58 THE DELEGATES, PUBLIC, AND PRESS 

a harmonious voice, a fine person and striking man- 
ners"; and a Virginian later wrote that "his manner 
and disposition were formed alike to inspire and return 
lively sentiments of friendship and affection. . . . 
There was, however, one drawback ... an insta- 
bility of conduct and opinion resulting not from moral 
but intellectual causes/' 1 

Benjamin Franklin was born in 1706, and was eighty- 
one years old. His long years of service in Colonial 
affairs in Pennsylvania, as agent of the Colonies in 
England, in the Continental Congress, as Minister to 
France, and now as President of Pennsylvania, pre- 
eminently fitted him as a sage adviser. He had been 
unanimously elected at the spring session of the Legis- 
lature, after a nomination by Robert Morris, who had 
said that "a Convention met on so important and inter- 
esting an occasion could not fail to derive great assistance 
and advantages from the knowledge and patriotism of 
that experienced statesman and philosopher." 2 Jeffer- 
son termed him "the greatest man and ornament of the 
age and country in which he lived", and Madison said 
of him that "he has written his own life and no man 
ever had a finer one to write." 3 Notwithstanding his 
advanced age and serious inflictions of gout and stone, 
Franklin took an active part in the proceedings, though 
his speeches were read for him by Wilson. 4 

1 Life and Times of James Madison (1859), by William Cabell Rives, II, 242-243. 

2 Pennsylvania Packet, March 27, 1787. Franklin wrote to the Due de la Roche- 
foucauld, April 15, 1787 : "There seems to be but little thought, at present, in the 
particular States, of mending their particular Constitutions ; but the grand Federal 
Constitution is generally blamed as not having given sufficient powers to Congress, 
Jie Federal head. A Convention is therefore appointed to revise that Constitution, 
and propose a better. You will see by the enclosed paper that your friend is to be 
one in that business, though he doubts his malady may not permit his giving con- 
stant attendance." 

8 Jefferson to Samuel Smith, Aug. 22, 1798, Writings of Thomas Jefferson (Ford's 
ed.), VIII, 448 ; Madison to J. R. Paulding, April, 1831, Writings of James Madison 
(Hunt's ed.), IX, 451. 

4 Dr. Benjamin Rush gave the following picture of Franklin, a year earlier, in a 
letter to Richard Price, May 25, 1786. "Our venerable friend, Dr. Franklin, con- 
tinues to enjoy as much health and spirits as are compatible with his time of his 



THE DELEGATES, PUBLIC, AND PRESS 59 

James Wilson was born in Scotland in 1742, and was 
forty-five years old a learned and skilful lawyer, a 
Member of Congress, and one of the signers of the 
Declaration of Independence, he was regarded as one of 
the foremost citizens of Philadelphia ; and Washington 
termed him as "able, candid, and honest a member" as 
the Convention held. 1 

Gouverneur Morris was born in 1754, being thirty- 
three years of age an eloquent and facile lawyer, a 
merchant and financier, who had served as Assistant to 
the Superintendent of Finance (Robert Morris) under 
the Confederation. "To the brilliancy and fertility of 
his genius, he added what is too rare " wrote 
Madison, "a candid surrender of his opinions when the 
lights of discussion satisfied him that they had been too 
hastily formed and a readiness to aid in making the best 
of measures in which he had been overruled." 2 The 
loss of a leg in his youth did not prevent him from tak- 
ing the floor as the most frequent speaker in the Con- 
vention. 

life. I dined with him a few days ago in a most agreeable circle where he appeared 
as cheerful and gay as a young man of five and twenty. But his conversation was 
full of the wisdom and experience of mellow old age. lie has destroyed party rage 
in our State, or, to borrow an allusion from one of his discoveries, his presence and 
advice, like oil upon troubled waters, have composed the contending waves of fac- 
tion which for so many years agitated the State of Pennsylvania." Price Papers 
in Mass. Hist. Soc. Proc. t 2d Series (1903), XVII. 

1 Washington to David Stuart, Oct. 17, 1787 ; see also James Wilson and the 
Constitution, by A. C. McLaughlin, Pol. Sci. Qu. (1897), XII. 

2 Madison to Jared Sparks, April 8, 1831. G. Morris wrote to Gen. Henry 
Knox, Jan. 9, 1787 : *' The newspapers will have informed you that Pennsylvania 
has appointed me a Commissioner on her part to meet in the Convention in May. 
Had the object been any other than it is, I would have declined. The appoint- 
ment was the most unexpected thing that ever happened to me, for I have not 
only declared in general, but in this particular instance objected to being named ; 
but it was done while I was at Trenton." Knox replied from New York, Jan. 16, 
1787 : " I am glad that you and Robert Morris are chosen as delegates to the 
Convention. I ardently wish, for many reasons, that the States would unanimously 
send delegates to it, but the various opinion? respecting it prevent. I most ex- 
ceedingly wish Massachusetts and the Eastern States would be at it, but they 
appear to think it an irregular step and inadequate to a critical situation. Will 
you muster up all your arguments in favor of it and forward them to me. I will 
not make a bad use of them." Knox Papers MSS in Massachusetts Historical 
Society Library. 



60 THE DELEGATES, PUBLIC, AND PRESS 

Rufus King was born in 1755, being thirty-two years 
old. He was a business man, and had been in the 
Massachusetts Legislature and a Member of Congress 
from Massachusetts since 1784. "Distinguished for 
his eloquence and great parliamentary talents," wrote 
William Pierce. 1 

John Rutledge was born in 1739, being forty-eight 
years old. He had been the leading statesman of 
South Carolina during the Revolution, and Attorney 
General and a Member of Congress from that State. 

Charles Pinckney was only twenty-nine years old 
born in 1758. He was a lawyer and had been a Member 
of Congress from South Carolina in 1777-1778, and 
from 1784 to 1787. "Intimately acquainted with 
every species of polite learning, and has a spirit of 
application and industry beyond most men," wrote 
Pierce. 

Oliver Ellsworth was born in 1745, being forty-two 
years old. He was a lawyer and had been a Member of 
Congress from Connecticut and Judge of the highest 
Court of that State from 1784 "a gentleman of clear, 
deep and copious understanding, eloquent and con- 
nected in public debate" (in the words of Pierce), and 
as described later by a fellow diplomat "that man has a 
head of iron, just iron, that works with the precision of 
a mule without its quickness and giddy manner. I 
profoundly admire the neatness and accuracy of his 
mind." 2 

Roger Sherman was born in 1721, being sixty-six 

1 T. P. Brissot de Warville in his New Travels in the United States of America 
recorded in August, 1788 : " Mr. King whom I saw at this dinner passes for the most 
eloquent man of the United States. What struck me most in him was his modesty. 
He appears ignorant of his own worth. Mr. Hamilton has the determined air of a 
republican; Mr. Madison the meditative air of a profound politician. . . . His 
look announces a censor, his conversation discovers the man of learning, and his 
reserve was that of a man conscious of his talents and of his duties." 

2 The Letters of John Quincy Adams (1912), II., William Vans Murray to Adams, 
Nov. 7, 1800. As to his farming interests, see " Letters of a Landholder," Connecti- 
cut Courant, Nov. 5, 1787. 



THE DELEGATES, PUBLIC, AND PRESS 61 

years old (next to Franklin in age). He had originally 
been a shoemaker but had become a lawyer, he had been 
a signer of the Declaration of Independence, a Member 
of Congress from Connecticut, and a Judge of the high- 
est Court of that State. " No man has a better heart 
or a clearer head/ 5 wrote Pierce. 

Of all the delegates, there was one whose presence in 
the Convention was absolutely essential to its success, 
and without whose approval, the work of the Conven- 
tion would have failed of acceptance by the American 
people. 1 In estimating the services of George Washing- 
ton to his country, the part he played in this connec- 
tion should rank next to his military service. Of his 
familiarity with the defects of the existing form of 
Government and of his long insistence upon the neces- 
sity of a change, his correspondence (quoted in the 

1 When the Convention had finished its great task, Gouverneur Morris wrote to 
Washington, October 30, 1787, his views of the importance of the latter's participa- 
tion : "I have observed that your name to the new Constitution has been of infinite 
service. Indeed, I am convinced that if you had not attended the Convention, and 
the same paper had been handed out to the world, it would have met with a colder 
reception, with fewer and weaker advocates, and with more and more strenuous 
opponents. As it is, should the idea prevail that you will not accept the Presidency, 
it would prove fatal in many parts. The truth is, that your great and decided 
superiority leads men willingly to put you in a place which will not add to your per- 
sonal dignity nor raise you higher than you already stand. But they would not 
readily put any other person in the same situation." 

Forty years later, a contemporary, writing his reminiscences of 1787 in the Salem 
Gazette, June 5, 1827, said that the Constitution was framed "by some of the great- 
est and best men of the country who were actuated by the purest patriotism, by a 
sincere and ardent desire to render their country great and happy," and that at the 
head of the Convention was "a man in whose wisdom, integrity and patriotism the 
whole people placed unbounded confidence ; and let it be forever remembered, it is 
to George Washington, the United States are indebted for the establishment of the 
Federal Government. Had not the Constitution come out under the sanction of 
his name, it never would have been adopted." See, however, comments on this by 
Timothy Pickering. Pickering Papers MSS, XLVI, 368. 

William Livingston, Governor of New Jersey, writing in Collins Gazette, as early 
as April 1, 1778, had made the following interesting poetical prophecy of Washing- 
ton's future part (The Memoirs of the Life of William Livingston (1833), by Theodore 
Sedgwick, Jr.) : 

"And in the calm of life 

Methinks I see thee, Solon-like, design 

The future grandeur of Confederate States 

High towering ; or for legislation met, 

Adjust in Senate what thou sav'dst in war." 



62 THE DELEGATES, PUBLIC, AND PRESS 

preceding chapter) affords ample proof. 1 It is no 
exaggeration to say that without the support which he 
gave to the calling of the Convention and without the 
confidence inspired in the country by his participation 
in the Convention and by his earnest advocacy of its 
final work, the Constitution never would have been 
adopted. General Henry Knox rightly wrote, during 
this spring of 1787, that: "I am persuaded that your 
name has had already great influence to induce the 
States to come into the measure ; that your attendance 
will be grateful and your absence chagrining ; that your 
presence would confer on the Assembly a National 
complexion, and that it would more than any other 
measure induce a compliance to the propositions of the 
Convention"; and again that "the unbounded con- 
fidence the people have of your patriotism and wisdom 
would exceedingly facilitate the adoption of any impor- 
tant alterations that might be proposed." 2 

In spite of this general view as to the benefits to be 
derived from his attendance, Washington had been 

1 George Bancroft in his History of the Formation of the Constitution (1882), I, 278, 
said: "He made himself familiar with the reasonings of Montesquieu; and he 
obtained the opinions not of Madison only, but of Knox and of Jay. From their 
letters and his own experience, he drew three outlines of a new Constitution, dif- 
fering in manifold ways, and yet each of the three designed to restore and consoli- 
date the Union." This statement was slightly inaccurate as it was made by Ban- 
croft on the authority of an article by Jared Sparks in North American Review (Oct. 
1827), XXV, 263, in which Sparks simply stated that : " We are about to insert a 
document, which we possess, in General Washington's handwriting, and which is a 
summary of three letters received by him from Jay, Knov and Madison not long 
before the Convention at Philadelphia. . . . After obtaining the views of others 
in detail, it was his custom to draw out, arrange and note on paper the prominent 
points that he might bring them into a compass which his mind could more easily 
grasp. The following quotation is an exact transcript of such a summary." 

* Knox to Washington, March 19, April 9, 1787. Writing March 19, he said : 
" Were the Convention to propose only amendments and patchwork to the present 
defective Confederation, your reputation would in a degree suffer. But were an 
energetic and judicious system to be proposed with your signature, it would be a 
circumstance highly honorable to your fame, in the judgment of the present and 
future ages; and doubly entitle you to the glorious republican epithet The 
Father of your Country. But the men generally chosen being of the first informa- 
tion, great reliance may be placed on the wisdom and vigor of their councils and 
judgments, and therefore the balance of my opinion preponderates greatly in favor 
of your attendance." 



THE DELEGATES, PUBLIC, AND PRESS 63 

extremely reluctant to accept the appointment as 
delegate which the Virginia Legislature had made, on 
December 4, 1786. In answer to a deluge of letters 
urging his acceptance, he had written to all that it 
would be "impracticable", giving as his reasons 
first, that he was in very bad health, and second, that 
he had already declined attending a meeting of the 
General Society of the Cincinnati of which he was 
President and which was also to convene in Philadel- 
phia in May. 1 Edmund Randolph as Governor of 
Virginia had, however, continued to entreat his accept- 
ance. So had Madison, who wrote earnestly : 

"It was the opinion of every judicious friend whom I con- 
sulted, that your name could not be spared from the Depu- 
tation to the Meeting in May at Philadelphia. It was sup- 
posed, in the first place, that the peculiarity of the mission, 
and its acknowledged pre-eminence over every other public 
object, may possibly reconcile your undertaking it with the 
respect which is justly due and which you wish to pay to the 
late officers of the army ; and in the second place, that al- 
though you should find that or any other consideration an 
obstacle to your attendance on the service, the advantage 
of having your name in the front of the appointment as a 
mark of the earnestness of Virginia, and an invitation to the 
most select characters from every part of the Confederacy, 
ought at all events to be made use of." 

To this Washington had replied : 

"I have been thus particular, to show, that under cir- 
cumstances like these, I should feel myself in an awkward 
situation to be in Philadelphia on another public occasion, 

1 See Washington to Randolph, Nov. 14; Randolph to Washington, Dec. 6; 
Madison to Washington, Nov. 8, Dec. 7 ; Washington to Madison, Dec. 16 ; Wash- 
ington to Randolph, Dec. 21, 1786; Randolph to Washington, Jan. 4, March 11, 
1787, April 2, 1787 ; Washington to Humphreys, Dec. 26, 1786 ; Humphreys to 
Washington, Jan. 20, March 24, April 9, 1787; Washington to Knox, March 8, 
1787 ; Knox to Washington, March 19 ; Washington to Knox, April 3 ; Knox to 
Washington, April 9 ; Washington to Knox, April 27, 1787. 



64 THE DELEGATES, PUBLIC, AND PRESS 

during the sitting of this Society. That the present moment 
is pregnant of great and strange events, none who will cast 
their eyes around them can deny. What may be brought 
forth between this and the first of May, to remove the dif- 
ficulties which at present labor in my mind against the accept- 
ance of the honor, which has lately been conferred on me 
by the Assembly, is not for me to predict ; but I should think 
it incompatible with that candor, which ought to character- 
ize an honest mind, not to declare that under my present 
view of the matter, I should be too much embarrassed by the 
meeting of these two bodies in the same place at the same 
moment, after what I have written, to be easy in my situa- 
tion, and therefore that it would be improper to let my 
appointment stand in the way of another." 

While this correspondence was going on, Col. David 
Humphreys of Connecticut, who had been his military 
aide, was urging Washington not to accept, in view of 
the fact that the Convention was not likely to be a 
success and that participation in a failure would impair 
his influence on the country. "I know your personal 
influence and character is justly considered the last 
stake which America has to play. Should you not 
reserve yourself for the united call of a Continent 
entire?" he wrote in January, 1787. 1 On the other 
hand, Randolph wrote, in January, entreating Wash- 
ington not to make an immediate or final decision ; and 
in March, he wrote again with considerable urgency. 
On April 9, Humphreys wrote that circumstances had 
so changed, since Congress had determined to recom- 
mend the Convention, that he now was inclined to 
agree with General Knox and other friends that 
Washington's attendance might be advisable : 

1 On March 24, 1787, Humphreys wrote that Connecticut and New York were 
likely to elect to the Convention delegates "directly anti-federal", and he asked, 
"what chance is there then that entire unanimity will prevail ? . . . I have heard 
few express any sanguine expectations concerning the successful issue of the meet* 
ing, and I think not one had judged it eligible for you to attend." 



THE DELEGATES, PUBLIC, AND PRESS 65 

"Should you decide to be present at the Convention, it 
will be indispensable to arrive in Philadelphia the preceding 
week, in order to attend the General Meeting of the Cin- 
cinnati. This may palliate, perhaps obviate, one of my 
former objections. I mentioned in my last that I had not 
conversed with a single character of consideration who 
judged it proper for you to attend the Convention. I have 
now seen several who think it highly interesting that you 
should be here. Gouverneur Morris and some others have 
wished me to use whatever influence I might have to induce 
you to come. I could not have promised this without coun- 
teracting my own judgment. I will not, however, hesitate 
to say that I do not conceive your attendance can hazard 
such personal ill consequences as were to be apprehended, 
before the proposed meeting had been legitimated by the 
sanction of Congress. If the difference of opinion amongst 
the members of this National Assembly should be as great 
as the variety of sentiments concerning the results, the 
progress of business before it will be attended with infinite 
perplexity and embarrassment. Besides the two primary 
objects of discussion, viz., 1st, whether the old Constitution 
can be supported, or 2d, whether a new one must be estab- 
lished, I expect a serious proposal will be made for dividing 
the Continent into two or three separate Governments. 
Local politics and diversity of interest will undoubtedly find 
their way into the Convention. Nor need it be a matter of 
surprise to find there, as subjects of infinite disagreement, 
the whole Western country as well as the navigation of the 
Mississippi. Should you think proper to attend, you will 
indisputably be elected President. This would give the 
measures a degree of national consequence in Europe and 
with posterity ; but how far, under some supposable case, 
your personal influence, unattended with other authority, 
may compose the jarring interest of a great number of dis- 
cordant individuals and control events, I will not take upon 
me to determine. We cannot augur anything very favor- 
able, if we are to judge of future dispositions by those 
exhibited since the War." 



66 THE DELEGATES, PUBLIC, AND PRESS 

On March 28, however (before he received 
Humphrey's last letter), Washington wrote to Ran- 
dolph, agreeing to attend : 1 

"I had entertained hopes that another had been, or soon 
would be, appointed in my place, inasmuch as it is not only 
inconvenient for me to leave home, but because there will 
be, I apprehend, too much cause to arraign my conduct with 
inconsistence in again appearing on a public theatre, after 
a public declaration to the contrary, and because it will, I 
fear, have a tendency to sweep me back into the tide of 
public affairs, when retirement and ease is so essentially 
necessary for and is so much desired by me. However, as 
my friends, with a degree of solicitude which is unusual, seem 
to wish for my attendance on this occasion, I have come to a 
resolution to go, if my health will permit. ... I have of 
late been so much afflicted with a rheumatic complaint in my 
shoulder that at times I am hardly able to raise my hand to 
my head, or turn myself in bed." 

It is interesting to note that Madison, himself, as the 
date of the Convention approached, was so pessimistic 
as to its chances of success that he suggested to Ran- 
dolph, April 15, that Washington delay his attendance : 

"The probability of General Washington's coming to 
Philadelphia, is, in one point of view, flattering. Would it 

1 His decision to attend the Federal Convention made it necessary for Washing- 
ton to reconsider his declination to attend the meeting of the Society of the Cin- 
cinnati, and to accept reappointment as President as he explained in a letter to 
Jefferson, May 80, 1787 : " Happy in finding (so far as I could learn by assiduous 
inquiry) that all the clamors and jealousies, which had been excited against the 
original Association, had ceased, I judged it a proper time in the last autumn to 
withdraw myself from any farther agency in the business ; and to make my retire- 
ment complete, agreeably to my original plan. I wrote circular letters to all the 
State Societies, announcing my wishes, informing that I did not propose to be at the 
General Meeting, and requested not to be reelected President. This was the last 
step of a public nature I expected ever to have taken. But, having since been 
appointed by my native State to attend the National Convention, and having been 
pressed to a compliance in a manner which it hardly becomes me to describe, I have, 
in a measure, been obliged to sacrifice my own sentiments, and to be present in 
Philadelphia, at the very time of the General Meeting of the Cincinnati. After 
which I was not at liberty to decline the presidency, without placing myself in an 
extremely disagreeable situation with relation to that brave and faithful .class of 
men whose persevering patriotism and friendship I had experienced on so many 
trying occasions.*' 



THE DELEGATES, PUBLIC, AND i HESS 67 

not, however, be well for him to postpone his actual attend- 
ance, until some judgment can be formed of the result of 
the meeting ? It ought not to be wished by any of his friends 
that he should participate in any abortive undertaking. It 
may occur, perhaps, that the delay would deprive the Con- 
vention of his presiding auspices, and subject him, on his 
arrival, to a less conspicuous point of view than he ought on 
all occasions to stand in. Against this difficulty must be 
weighed the consideration above mentioned." 

It is well known that historians American, 
English, and foreign have long agreed that no 
political assembly ever contained a larger proportion 
of members possessing high character, intellectual 
ability, political sagacity, and far-sighted statesman- 
ship. It is sometimes forgotten, however, that the 
men of their own times were equally unanimous in 
recognizing the merit of the delegates, and in according 
to those delegates disinterested, unselfish, and patriotic 
motives in the performance of their great task. Thus, 
Jefferson wrote from Paris of his "high opinion of the 
abilities and honesty of the framers of the Constitution." 

John Adams wrote from London before the Con- 
vention, that it was to consist of "members of such 
ability, weight, and experience that the result must be 
beneficial," and later he wrote that the Constitution 
was the result "of good heads prompted by good 
hearts." Franklin wrote that the delegates were 
"men of character for prudence and ability." John 
Jay wrote of their "patriotism and talents." President 
Ezra Stiles of Yale College, wrote that "this Federal 
Convention embosoms some of the most sensible and 
great characters in America." l Leading opponents of 
the Constitution itself paid tribute to the character of its 
framers. Thus, George Mason of Virginia wrote that 
"America has certainly upon this occasion drawn forth 

1 The Literary Diary of Ezra Stiles (1012), III, June 6, 1787. 



68 THE DELEGATES, PUBLIC, AND PRESS 

her first characters ... of the purest intentions." 
Richard Henry Lee wrote that "America probably 
never will see an assembly of men of a like number 
more respectable"; and Patrick Henry spoke of the 
States as having trusted "the great object of revising 
the Confederation to the greatest, the best, and the 
most enlightened of our citizens." l M. Otto, the 
French diplomatic representative in this country, 
wrote to the Foreign Office that: "If all the delegates 
chosen for this Congress attend, one will never have 
seen, even in Congress, an Assembly more respectable 
for talents, knowledge, disinterestedness, and patriotism 
in those who will compose it." 2 As will be amply seen 
in succeeding chapters, the newspapers of the day paid 
unanimous and unstinted tribute to the high motives 
and character of the delegates. And James Madison 
at the close of his life, stated that : "Whatever may be 
the judgment pronounced on the competency of the 
architects of the Constitution, or whatever may be the 
destiny of the edifice prepared by them, I feel it a duty 
to express my profound and solemn conviction, derived 
from my intimate opportunity of observing and appre- 
ciating the views of the Convention, collectively and 
individually, that there never was an assembly of men, 
charged with a great and arduous trust, who were more 
pure in their motives or more exclusively or anxiously 
devoted to the object committed to them to ... 
best secure the permanent liberty and happiness of 
their country." 3 

1 So also, George Clinton ("Cato") in New York Journal, Oct. 11, 1787, wrote 
that he thought "that the wisdom of America in that Convention, was drawn to a 
focus. I placed an unbounded confidence in some of the characters who were mem- 
bers of it, from the services they had rendered their country, without adverting to 
the ambitions and interested views of others." And James Winthrop (" Agrippa") 
in Massachusetts Gazette, Jan. 20, 1788, termed the members of the Convention 
"men respectable for learning and ability." 

2 M. Otto to Comte de Montmorin, April 10, 1787, Farrand, III, 15. 

3 Preface to Notes of Debates, by James Madison, written in 1834 or 1835. 
Charles Pinckney said in the House, Feb. 13, 1821 (16th Cong., 2d Sess.) : "This 



THE DELEGATES, PUBLIC, AND PRESS 69 

That these men possessed the confidence of the 
people of this country was shown by the fact that eight 
of them were elected as Representatives and ten of 
them as Senators of the First Congress of the United 
States, in 1789. And the other posts of honor to which 
they were later called mark these men as worthy of 
confidence. Two became Presidents of the United 
States (Washington and Madison) ; and one, Vice 
President (Gerry). Two became Chief Justices of the 
United States (Rutledge and Ellsworth), and three, 
Associate Justices of the Supreme Court (Blair, Wilson, 
and Paterson). Randolph became Attorney General 
and Secretary of State of the United States ; and 
Hamilton, Secretary of the Treasury. Six became 
Governors of their States. Four became Ministers to 
foreign countries. 

It has sometimes been contended, in recent years, 
that these fifty-five men who drafted the Constitution 
were not truly representative of the people of the 
States, because they came entirely from the mercantile, 
the professional, or the propertied classes, and included 
no immediate representatives of the small farmers or 
mechanics. It has also been insisted that because they 
were the owners, to a greater or less degree, of Govern- 
ment securities and of landed properties, or of person- 
alty used for loans or for business purposes, that the 
form of government which they adopted was designed 
chiefly in the interests of property and that the Con- 
stitution was an economic document framed primarily 
to protect property. 1 Those who urge this view of the 

Constitution'of compromise was formed by a body of men at least as well informed 
and disinterested and as much lovers of freedom and humanity as may probably 
ever again be assembled in this country/' 

1 See An Economic Interpretation of the Constitution (1913), by Charles A. Beard. 
In this book, after elaborate research, Prof. Beard arrived at the conclusion that of 
the fifty-five delegates, forty-five had investments in public securities ; fourteen in 
land for speculation ; twenty-four in money loaned at interest ; eleven in person- 
alty in mercantile, manufacturing, and shipping interests ; and fifteen in personalty 



70 THE DELEGATES, PUBLIC, AND PRESS 

work of the framers of the Constitution overlook many 
factors. 

In the first place, it is to be noted that if these dele- 
gates were not truly representative of American 
beliefs, of American principles, and of American 
desires at the time, then the same thing is true of the 
statesmen who sat in the Continental Congresses in 
1775 and 1776, of those who signed the Declaration of 
Independence, of those who framed the State Con- 
stitutions, who drafted the Articles of Confederation, 
and who sat in the Congress from 1781 to 1786. For 
not only did the delegates comprise many of the actual 
men who took part in all of those other political gather- 
ings prior to the date of the Federal Convention, but 
they came from the same class of men from which most 
of the other members of those previous gatherings were 
elected. So that if this Federal Convention was not 
truly representative of American principles, then 
neither were any of the Continental bodies which had 
previously met. Moreover, these delegates were ap- 
pointed by State Legislatures;- and in most of the 
States, the small farmers, who formed a part of the 
debtor class at the time (if such a thing as a distinc- 
tively debtor class existed which is doubtful), had 
a fully adequate representation in the Legislatures. 
This fact is frequently overlooked by historians the 

in slaves. As some of his data were of a later date than 1787, the figures cannot be 
taken as entirely accurate. Moreover, as Prof. Beard points out, sixteen out of the 
forty-five owning Governmental securities owned less than $5000 ; yet no line of 
distinction can be traced in their votes in the Convention between the holders of 
large amounts and holders of small amounts of securities. It should be carefully 
noted, however, for it has been often overlooked, that Prof. Beard himself was scru- 
pulously careful to state that he did not intend to charge that the delegates made 
the Constitution for their personal benefit, for he said (p. 73) : "The purpose of 
such an enquiry is not, of course, to show that the Constitution was made for the 
personal benefit of the members of the Convention. Far from it. ... The only 
point here considered is : Did they represent distinct groups whose economic inter- 
ests they understood and felt in concrete, definite form through their own personal 
experience with identical property rights, or were they working merely under the 
guidance of abstract principles of political service?" 



THE DELEGATES, PUBLIC, AND PRESS 71 

fact that, since possession of freehold in land was then 
a property qualification for voting for members of the 
Legislature, it was peculiarly the small farmers who, in 
most States, were possessed of the requisite qualifica- 
tion to vote. Hence, it cannot accurately be stated 
that they had no part in choosing representatives to the 
Federal Convention. 

In the second place, the delegates did not and could 
not, from the nature of things, act in behalf or in the 
interest of one particular class in the community solely, 
for the interests of each class varied very greatly in the 
different States. In a recent brilliant history, there 
has been repeated the theory that economic conditions 
.accounted for the division of party lines in 1787 ; * and 
the following classes of people are described as having 
been those interested in promoting a new Constitution 
all who held claims against the Government, original 
holders of securities and speculators in such securities, 
owners of warrants for land, the soldiers and officers 
who held Government notes, certificates, and warrants, 
the shipowners and agents engaged in foreign trade, 
the domestic merchants, the money lenders; and, it 
is said: "In short, the financial, creditor, commercial, 
and speculating classes, from every point of view, as 
they saw the matter, had valid reasons for wanting to 
establish under their own auspices, on American soil, 
a system of centralized political, judicial, and economic 
control." On the other hand, the agrarian interests, 
the small farmers, and the debtors are portrayed as the 
classes chiefly opposed to the Constitution. Simi- 
larly, in another recent book, it is said : "The Federal 
Constitution was a practical document, drawn up by 
representatives of the class of property owners, security 
holders, speculators in Western lands, merchants and 

1 The Rise of American Civilization (1927), by Charles A. Beard and Mary R. 
Beard, I, 303-306. 



72 THE DELEGATES, PUBLIC, AND PRESS 

bankers, who wisely desired to escape from the economic 
and fiscal chaos of the Government under the Articles 
of Confederation. The Constitution was opposed by 
the debtors, chiefly from the agricultural districts." 1 

Such an alignment of interests in favor of and against 
the Constitution is clearly imperfect. The lines of the 
picture are altogether too neat, too simple. Inci- 
dentally, it may be noted that the division of the 
community, above made, omits any mention of a 
considerable proportion of the population all the 
physicians, clergymen, and small attorneys, all the 
small tradespeople, all the domestic servants, ap- 
prentices, and farm laborers, all the mechanics in the 
industrial and shipping business, and all the small 
manufacturing industries (woolen, iron, paper, cotton, 
and many others), which had grown up during the war 
and which were conducted by individual men. But the 
fundamental error made by the economic historians is 
this that no such division of the population into a 
debtor and a creditor class as they have contended, 
existed in fact. The bulk of Americans, in 1787, were 
actually neither rich nor poor, but consisted of the plain, 
every -day citizen, hard working and possessing sufficient 
means to raise a family in reasonable comfort. Richard 
Henry Lee of Virginia, the Antif ederalist leader, rightly 
depicted the real situation when, writing in the fall of 
1787, he said that there were "two very unprincipled 
parties in the United States, two fires between which 
the honest and substantial people have long found 
themselves situated. . . . These two parties . . . are 
really insignificant, compared with the solid, free, and 
independent part of the community" : 

"One party is composed of little insurgents, men in debt 
who want no law and who want a share of the property of 
others ; these are called levellers, Shaysites, etc. The other 

1 History and Social Intelligence (1926), by Prof. Harry Elmer Barnes. 



THE DELEGATES, PUBLIC, AND PRESS 73 

party is composed of a few, but more dangerous men, with 
their servile dependents; these avariciously grasp at all 
power and property ; you may discover in the actions of 
these men an evident dislike to free and equal government, 
and they will go systematically to work to change, essen- 
tially, the forms of government in this country ; these are 
called aristocrats, etc., etc. Between these two parties is the 
weight of the community ; the men of middling property, 
men not in debt on the one hand, and men on the other, 
content with republican governments, and not aiming at 
immense fortunes, offices and power." 

And James Madison wrote that while, in Virginia, 
the lawyers and propertied men were opposing the 
Constitution, "the body of sober and steady people, 
even of the lower order, are tired of the vicissitudes, 
injustice, and follies which have characterized public 
measures, and are impatient for some changes which 
promise stability and repose." 1 

It is this solid, free, independent part of the com- 
munity these "men of middling property, who were 
not in debt on the one hand and on the other content 
with republican governments" that the economic his- 
torian leaves entirely out of account, or else wrongly clas- 
sifies as a unit. In other words, an alignment of men as 
for or against a new Constitution, on the basis of property 
or non-property credits or debts, is an attempted 
simplification of the political situation in 1787, which 
facts and human nature do not support. It is impos- 
sible to draw a hard and fast economic line with 
reference to the attitude of classes of men towards the 
Constitution, and omit all consideration of their 
political faiths, ideals, inherited sentiments, personal 
antagonisms, past experiences, and patriotic desires. 
The same class had different views in different parts of 
the country. The same class had different interests 

1 Writings of James Madison (Hunt's ed.)> V, Madison to Jefferson, Dec. 9, 1787. 



74 THE DELEGATES, PUBLIC, AND PRESS 

which would impel them in divergent directions, if they 
were to be moved purely by selfish causes. Thus, 
ownership of Government securities by the delegates 
or by others was certainly not a proof that they were 
devoted to property interests; for at that time (as 
recently during the Great War), there was probably not 
a single patriotic citizen of any means whatever, who 
had not invested in such securities, or who had not 
received them in payment for his military or other 
services to the Government. Moreover, large numbers 
of the small farmers and debtors were also holders of 
such Government paper received in payment for sup- 
plies to the army. So, too, large numbers of the 
soldiers and officers were also owners of Government 
paper and land warrants, and at the same time many 
of them were small farmers and debtors. According to 
the economic theory, all these men, in their capacity 
of Government creditors, were necessarily interested in 
the adoption of the Constitution, yet, equally according 
to the economic theory, as small farmers and debtors, 
they were necessarily opposed to its adoption. It may 
be noted that the leaders of the Shays Rebellion, them- 
selves, were army officers holding such Government 
claims, and that two of them were actually members of 
the Society of the Cincinnati : while of the Massa- 
chusetts State Convention, which ratified the Con- 
stitution, fifty out of eighty-one members bearing 
military titles voted against the Constitution. In 
actual application, the attempted simple classification 
does not work. So too, if all the debtors were to be 
regarded as interested in opposing the Constitution and 
in upholding paper money and stay and tender laws 
favorable to them as a class, then a large number of the 
wealthy planters would, theoretically, be so included; 
for most men of property were then heavily in debt. 
Thus, George Washington himself was in grave finan- 



THE DELEGATES, PUBLIC, AND PRESS 75 

cial difficulties at this time, and had written only 
three months before the Federal Convention, that he 
had had no crops for two years and that he could not 
pay his running expenses without selling some of his 
land at less than its value ; and again he had written 
that unless a loan could be repaid, the sheriff might 
distrain his land for taxes. 1 George Mason of Virginia, 
though owner of large landed estates, said that he could 
not come to the Convention unless the Legislature 
would advance his salary. Hence, if impelled merely 
by economic motives, it would have been the interest of 
such men to vote in the Convention in favor of stay 
laws postponing payment of their debts. In South 
Carolina, many of the wealthy planters heavily in debt 
did, in fact, oppose the Constitution because they 
favored paper money legislation as a means of paying 
their debts. 2 

The so-called "landed interest" were by no means 
united in their views, and were far from acting as a unit. 
This class was described by Charles Pinckney of South 
Carolina, as follows: "In the Eastern and Northern 
States, the landed property is nearly equally divided ; 
very few have large bodies and there are few that have 
not small tracts. The greater part of the people are 
employed in cultivating their own lands; the rest in 

1 Washington wrote to Mrs. Mary Washington, Feb. 15, 1787, that he owed for 
taxes, that he had had no crops for two years and that he could not pay his expenses 
without selling some of his land at less than its value. To John F. Mercer, he wrote, 
Jan. 11, 1788, that unless Mercer should pay two hundred pounds "which you 
assured me in Philadelphia, I might absolutely rely", he would be obliged to allow 
the sheriff to distrain his (Washington's) land for taxes ; see also letter to Mercer, 
Sept. 9, 1787. 

2 See History of the United States (1912), by Edward Channing, III, 482-483. 
See also letter from Charleston, So. Car., in Independent Gazetteer, April 19, 1788, 
stating that John Rutledge, one of the leading advocates of the Constitution, "is 
principally concerned here in the paper money laws and in preventing the due execu- 
tion of property for lawful debts. . . . The back country interests (i.e., the small 
farmer) is as large as the lower, and they are pretty unanimous in the opposition, 
and the lower is divided ; the first opposed from principle, and the latter from paper 
money interests, as all the lower country are in favor of paper money, etc., except 
the city and some leading characters such as Aedanus Burke, Esq., who is the head 
of the opposition in the City." 



76 THE DELEGATES, PUBLIC, AND PRESS 

handicraft and commerce. . . . Among the landed 
interest, it may be truly said there are few of them rich 
and few of them very poor." l In New York, the 
owners of large estates were opposed to the Constitution, 
because of their fear of new and heavy Federal direct 
taxes on land; in Virginia and South Carolina, many 
of the large planters were actuated by the same fears. 
Of the small farmers, it is true that many of those in 
Massachusetts, Connecticut, and North Carolina were 
opposed to the Constitution; but on the other hand, 
many of those in Pennsylvania and Western Virginia 
were active in support of the Constitution. 2 

As to the lawyers, it will be found that their views 
varied in the different States. In Massachusetts, they 
all favored the Constitution. In New York, they were 
divided, and in Virginia, they were largely opposed. 
Thus, James Madison wrote to Jefferson, December 9, 
1787, that in Virginia: "The General and Admiralty 
Courts, with most of the Bar, oppose the Constitution", 
and "while in Virginia and some of the other States in 
the Middle and Southern Districts of the Union, the 
men of intelligence, patriotism, property, and independ- 
ent circumstances are thus divided, all of this de- 
scription in the Eastern States and most of the middle 
States are zealously attached to the Constitution." 3 

* Ettiafs Debates, IV, 321. 

Madison said in the Convention, July 26, 1787 : " Landed possessions were no 
certain evidence of real worth. Many enjoyed them to a great extent who were 
more in debt than they were worth. The unjust laws of the States had proceeded 
more from this class of men than any other." G. Morris said, August 7, that -fa of 
the people "are at present freeholders." 

2 In the Pennsylvania Packet, Dec. 25, 1787, a correspondent just returned from 
Virginia wrote that "at least ^$ of the yeomen of Virginia are on the side of General 
Washington, the man of the People, in favour of the new Government," and that 
"the nabobs or great men (falsely so called) of Virginia are its only enemies." On 
the other hand, Patrick Henry, in the Virginia State Convention in June, 1788, 
stated, as his belief, that ** the great body of yeomanry are in decided opposition to 
it." ElUot's Debates, IV, 159. It is a fact, however, that it was the vote of the 
delegates from the small farming districts in the Western part of Virginia (other 
than Kentucky), which secured the adoption of the Constitution in Virginia. 

3 Writings of James Madison (Hunt's ed.), V, Madison to Jefferson, Dec. 9, 1787. 
A letter from a Representative in the Virginia Assembly who wrote from Richmond. 



THE DELEGATES, PUBLIC, AND PRESS 77 

If there was any wealthy class at that time, it con- 
sisted probably of the importers, the merchants, and the 
shipowners in the sea-coast towns and cities ; but these 
were divided in their views ; in New York most of 
them opposed the Constitution, for fear of the loss to 
that State of its import taxes and its commercial 
monopoly ; while in Pennsylvania and Massachusetts, 
they took a contrary view. From this class of persons, 
it is to be noted, there were but few delegates in the 
Federal Convention. 

As to the labor class and its attitude towards the 
Constitution, no such class, as now understood, then 
existed. It was then composed chiefly of apprentices, 
domestic servants, farm laborers, mechanics and sailors. 
As to the mechanics and the other city workingmen, 
they favored the Constitution in New York, Philadel- 
phia, and Boston, and wherever any note was taken of 
their action. 1 As to the farm laborers and domestic 
servants, there is no evidence extant as to their votes 
(even if many of them were entitled to any vote, which 
is doubtful). There were, in those days, no employees 
of business, manufacturing, public service, or municipal 
corporations, for no such corporations had then come 
into existence. 2 Hence, the Convention had no occa- 
sion to consider any of the problems affecting capital 
and labor, which give rise to so much of the social 

Dec. 15, 1787: "The most respectable names appear in the number of pros and 
cons. ... I will place at the head of the list for it, Judge Pendleton who is looked 
up to as the President of the Convention to be held in June. Nicholas, Wythe, 
Blair, the Pages, Johnson, Stuart, Harvie, Jones, Wood and a multitude of 
others against it first, as the leader of this party Henry, Mason, Governor 
Randolph. Lawson, John Taylor, with most of the General Court lawyers and 
many of the Judges, R. H. Lee . . . and many others. In a word, the division of 
the multitude is great.'* Maryland Journal, Dec. 18, 1787. 

1 As to the Constitution as a benefit to the mechanics, see New York Independent 
Journal, Oct. 6, 1787 ; American Herald (Boston), Jan. 14, 1788. 

2 In 1787, the only business corporations in existence were as follows : in Massa- 
chusetts, 1 banking, 1 bridge corporation ; in Connecticut, 1 mining ; in Pennsyl- 
vania, 1 bank, 1 insurance company ; in Maryland, 1 canal, 1 navigation ; in Vir- 
ginia, 2 navigation ; in South Carolina, 1 navigation. See Two Centuries of Growth 
of American Law (1901), pp. 296-311. 



78 THE DELEGATES, PUBLIC, AND PRESS 

legislation of today. Unless these things are borne in 
mind in considering the work of the men of 1787, one 
is constantly in danger of "reading into the past, con- 
ceptions which are especially characteristic of the 
present. The problems that the founders of the 
Government faced were essentially problems of political 
organization, while the problems that we have to face 
today are essentially problems of industrial organiza- 
tion." 1 It is faulty history to describe the subjects of 
division in 1787 in terms of class consciousness, for such 
social phenomena did not then exist. 

In view of the above, it is evident that if the picture 
is to be drawn of a division of the American people on 
economic lines, the lines would cross and recross and 
break and twist and curve, so as to render the line of 
division unrecognizable. And while, just as today as 
well as in every epoch of history, there were undoubt- 
edly numbers of voters who viewed the Constitution 
according to the manner in which they considered its 
adoption or rejection would benefit them personally, 
these people could not be classified uniformly in any 
single town, county, State, or section of the country. 
So that the delegates to the Federal Convention, even 
if they had selfishly desired to frame only such a Con- 
stitution as would protect the interests of the particular 
class whom they were supposed to represent, would 
have found themselves confronted with many conflicting 
views and interests even within that class. 

That the leaders, however, were not primarily actu- 
ated by economic or class interests, unconsciously or 
consciously, must be evident to those who have read 
the letters in the previous chapter. One cannot fail 
to be impressed with the fact that the burning desire 
and insistent determination pervading them was, that 
the Union of the States must be preserved and that all 

1 John H. LatanS in Amer. Pol. Sci. Rev. (1913), VII, pp. 698 et seq. 



THE DELEGATES, PUBLIC, AND PRESS 79 

legislation or other conditions prevailing in the States 
which were impeding or undermining this possibility of 
Union must be remedied, in any new form of Govern- 
ment that might be adopted. Proof that economic 
conditions per se played a minor part in the plans for 
alteration of the old Articles of Confederation is to be 
found in the fact that, as before pointed out, their 
plans for a more efficient and adequate Union were 
being suggested and worked out, long before the eco- 
nomic evils developed as alarmingly as they did in the 
three years prior to the Federal Convention. It has 
also been shown, in the previous chapter, how the 
Shays Rebellion has been over-emphasized by his- 
torians as a leading factor in producing an agreement 
upon a new Constitution, and how the fears produced 
by the sentiment prevailing in so many States for a 
separation of the Confederacy into three separate 
Confederacies was a far more potent factor in arousing 
men to the necessity of a Government, which should, if 
possible, bind the country into a firm Union. 

That many of the delegates were also greatly alarmed 
at the unwisdom and injustice of much of the State 
legislation dealing with property rights, and that they 
were resolved to remedy this evil, is undoubtedly true. 
Madison, indeed, later stated that such legislation 
"perhaps more than anything else produced this Con- 
vention." But it was not the economic effect of these 
State laws which chiefly alarmed them ; it was the fact 
that these laws were creating State dissensions which 
placed the National Union and independence in vital 
danger, and all the delegates were anxious to remedy 
any conditions, economic or otherwise, which were 
promoting these dissensions. 1 It is to be noted, more- 

1 Thus Madison himself in his Vices of the Political System of the United State*, 
written in the spring of 1787 (see Writings of James Madison (Hunt's ed.), II, 361), 
enumerated the State laws as to paper money, installments of debts, occlusion of 
the courts, legal tender, etc., as "aggressions on the rights of other States'* ; and. 



80 THE DELEGATES, PUBLIC, AND PRESS 

over, that those statesmen who led in opposition to the 
Constitution, like Patrick Henry, Richard Henry Lee, 
and Samuel Adams, were equally opposed to State 
laws issuing paper money and impairing obligation of 
contracts and, had they been members of the Con- 
vention, would equally have voted to include restric- 
tions on the States in these respects. The desire to 
protect individual rights (whether of property or other- 
wise and whether of the rich or poor) against the Gov- 
ernmental injustice was shared by the leaders of thought 
on both sides. It should further be noted that the 
framers of the Constitution (even though holders of 
Government securities) made no express provision in 
the Constitution for the payment of the Government 
securities ; they simply provided that such securities 
should remain as valid as under the Confederation; 
and, while they vested the new Congress with power to 
tax to pay debts, this was done in order to provide for 
a stable Government in the interest of the prosperity 
of all citizens, for it had been agreed by all Federal- 
ists and Antifederalists alike in 1787, that Congress 
must be given such a taxing power and the only dis- 
agreement had been over its power to lay direct taxes. 

The broad purpose of the delegates in respect to the 
protection of property was eloquently set forth by the 
veteran statesman, Edmund Pendleton, in the State 
Convention of Virginia, in 1788. 1 

"I am an advocate of fixing our government in true repub- 
lican principles, giving to the poor man free liberty in his 
person and property. Whether a man be great or small, he 
is equally dear to me. I wish for a regular government, in 
order to secure and protect those honest citizens who have 
been distinguished I mean the industrious farmer and 

he said, "the practice of many States in restricting the commercial intercourse with 
other States ... is certainly adverse to the spirit of the Union and tends to beget 
retaliating regulations . . . destructive of the general harmony." 
i Elliot's Debates, III, 295. 



THE DELEGATES, PUBLIC, AND PRESS 81 

planter. I wish them to be protected in the enjoyment of 
their honestly and industriously acquired property. I wish 
commerce to be fully protected and encourage it. ... I 
presume that there can be no political happiness, unless 
industry be cherished and protected, and property secured. 
... In my mind, the true principle of republicanism and 
the greatest security of liberty is a regular government." 

To sum up, the chief aim of the delegates was to 
establish an adequate Government which should pro- 
mote the Union of the States and which should be able 
to maintain itself at home and abroad. Economic 
prosperity was but an incident. To represent it as 
their leading aim is to attribute a sordid and selfish 
purpose which neither their characters nor their prin- 
ciples warrant. And in the words of Robert Louis 
Stevenson, "it is at best but a pettifogging, pickthank 
business to decompose actions into little personal 
motives, and explain heroism away." An able liberal 
writer of today has struck the keynote in reply to those 
who attribute economic motives to the class of men 
which included Washington and his colleagues in the 
Convention. "It was an aristocracy, and as such it 
had inherited a concept, of public duty, quite separate 
and distinct from the universal concept of private 
interest. There were things that Washington simply 
would not do, even to serve Washington. He saw the 
Nation that he had helped to set up, as something apart 
from and superior to himself, or to any other man in 
it as something deserving and demanding a high 
measure of devotion." * To the charge that they were 
influenced by their economic conditions, the framers 
would have made the same answer that Jefferson later 
made as President, to the charge that he was in- 
fluenced in his conduct of American affairs by his 
predilections for France: "I must have had a mind 

1 Henry L. Mencken, in American Mercury (1927), XII, 251. 



82 THE DELEGATES, PUBLIC, AND PRESS 

far below the duties of my station to have felt either 
National partialities or antipathies in conducting the 
affairs confided to me. My affections were first for my 
country, and then generally for all mankind." 

The men who framed the Constitution conceived and 
realized that they were building for a great Nation and 
for a great and illimitable future. They so stated in 
the Convention. Edmund Randolph of Virginia said 
that "the salvation of the Republic was at stake." 
James Wilson of Pennsylvania said that "when he 
considered the amazing extent of country, the immense 
population which is to fill it, the influence which the 
Government we are to form will have, not only on the 
present generation of our people and their multiplied 
posterity but on the whole Globe, he was lost in the 
magnitude of the object. . . . We should consider 
that we are providing a Constitution for future gener- 
ations and not merely for the peculiar circumstance of 
the moment." And John Rutledge of South Carolina 
said: "As we are laying the foundation for a great 
empire, we ought to take a permanent view of the 
subject and not look at the present moment only." 
Furthermore, they believed that they were engaged 
upon a work which would affect government not only 
in this country but also in the whole world. As 
James Madison said, it was probable that they "were 
now digesting a plan which in its operation would 
decide forever the fate of republican government." 
"Something must be done, or we shall disappoint not 
only America but the whole world," said Elbridge 
Gerry of Massachusetts. Men holding such broad 
views as to the nature of their task and its effect upon 
the whole future of their country and of the world were 
not moved by selfish, personal, or class interests in 
performing their great work. They were not engaged 
in constructing merely a guarantee of material prosper- 



THE DELEGATES, PUBLIC, AND PRESS 83 

ity. Their object was the welfare of their country and 
not merely the welfare of their currency, their com- 
merce, or their class. They were inspired by the 
determination to build a great Nation which should 
ensure the permanence of the liberty they had won on 
the battlefields of the Revolution. 

To what extent were the people at large familiar with 
the political and economic conditions which prevailed 
in 1787, and which were leading to dissolution of the 
Union ? To what extent were they inspired with the 
views of the leading statesmen of the times? The 
questions are difficult of answer. The people probably 
had slight acquaintance with theories of government; 
for, as John Adams wrote in 1790: "It is incredible 
how small is the number in any nation of those who 
comprehend any system of Constitution or adminis- 
tration," Undoubtedly, the nature of the remedy and 
the type of new government required under existing 
conditions were more clearly perceived by the great 
men whose ideas and motives have been described in 
the preceding chapter than by the mass of the people. 
It was the possession of that vision which made them 
leaders. A great leader is the man of intuition, the 
man who is the first to feel the movement of the age 
and to inspire others with a recognition of its signifi- 
cance. Such leaders, as Emerson said, "having hearts 
and minds in peculiar unison with their time and their 
country are able to point the way with the surest aim. 
. . . They are the lenses through which we read our 
own minds." And as Edmund Burke wrote : "As 
well may we fancy that, of itself, the sea will swell, and 
that without winds the billows will insult the adverse 
shore, as that the gross mass of the people will be 
moved and elevated, and continue by a steady and 
permanent direction to bear upon one point, without 
the influence of superior mind." 



84 THE DELEGATES, PUBLIC, AND PRESS 

These days prior to the Federal Convention were 
peculiarly a time when a few men with insight and 
patriotic statesmanship led and moulded public opinion. 
But while perhaps not capable of formulating or decid- 
ing for themselves the changes in their Government 
needed to preserve their union, the people of the times 
were undoubtedly familiar with and deeply impressed 
by the Legislative and economic conditions, which 
made those changes imperative. They received their 
political education partly from almanacs, from pam- 
phlets, from letters of leading American statesmen 
copied or passed from hand to hand, but chiefly from 
the newspapers. 1 The comments and correspondence 
appearing in the papers (whether containing accurate 
or inaccurate views) were prominent sources from 
which Americans drew their political opinions ; and 
a survey of the papers, between January and May, 
1787, affords a fairly accurate idea of the extent to 
which the minds of the reading public were directed 
towards the problems which gave rise to the Federal 
Convention. The newspapers of Philadelphia, Boston, 
and New York played the most important part in this 
political education of the country; for not only were 
they the leading papers in their respective States, but 
they were also the chief source from which the papers 
of the other States derived material to fill their col- 
umns; and comments and letters appearing in these 
three cities were reproduced or otherwise used by 

1 Politics formed the leading topic in a new monthly magazine issued by 
Matthew Carey called The American Museum, whose second number had appeared 
on February 1, 1787. Though containing poems, essays, fiction, and scientific 
articles, this first number presented seven articles on opportune political topics: 
''Comfort for America or remarks on her real situation, her interests and her 
politics" (by B. Franklin) ; "On the defects of the Confederation" ; "Letter of a 
farmer aged 67 on the real cause of and cure for Hard Times" ; " Causes of a coun- 
try's growing rich" ; "Letter on the propriety of investing Congress with power to 
regulate trade" ; "Letter on American manufactures" ; "Common Sense by Mr. 
Payne. Part the first, on the origin and design of government in general with 
concise remarks on the English Constitution. Part the Second, on monarchy and 
hereditary succession." 



THE DELEGATES, PUBLIC, AND PRESS 85 

editors throughout the country. Nothing in these 
papers is more striking than the amount of space 
devoted to the political situation, illuminating refer- 
ences being found to all the conditions which were 
factors in convincing the public of the necessity of a 
change in their form of Government the proposals 
for division into three Confederacies, the paper money 
legislation, the situation in Rhode Island, the Shays 
Rebellion, the refusal of New York to grant to Congress 
power to levy import duties, the disordered state of the 
currency, the iniquitous State legislation violative of 
private contracts all were commented on in numer- 
ous articles and letters. 

One factor in the situation undoubtedly greatly 
influenced men to look favorably on proposals for a 
change in the form of Government namely, the 
existence (or at least the belief in the existence) of 
"hard times." In parts of some of the States, seriously 
depressed conditions prevailed in agriculture and in 
commercial business. Paper money in some States 
had driven out specie, and debtors, even with the best 
intentions, found it difficult to pay their debts. For- 
eign commerce was burdened by the navigation laws of 
England, and interstate commerce by the restrictive 
laws of States like New York and Virginia. Taxes were 
inordinately high. 1 That the reports of "hard times" 

1 Some statesmen believed that the hard times were due to the people's own 
fault rather than to laws or lack of them. Thus, Noah Webster wrote to Timothy 
Pickering, Aug. 10, 1786, from Massachusetts: "It is a fact, demonstrated by cor- 
rect calculations, that the common people in the country drink rum and tea suffi- 
cient every year to pay the interest of the public debt articles of luxury, which, 
so far from doing them any good, injure their morals, impair health and shorten 
their lives. A man has a right, in a political view, to make himself sick or drunk 
when he pleases, provided he does not injure himself or his neighbors ; but when, 
by these means, he renders himself unable to fulfill the duties of society, or comply 
with the laws of the State, very little indulgence should be granted to luxuries. 
The best way to redress grievances is, for every man when he gets a sixpence, instead 
of purchasing a pint of rum or two ounces of tea, to deposit his pence in a desk till 
he has accumulated enough to answer the calls of the Collector. Every man who 
does this soundly redresses his own grievances." Pickering Papers 3/SS., XIX, 
74. Richard Henry Lee, writing to George Mason, May 15, 1787, said: "Alas, 



86 THE DELEGATES, PUBLIC, AND PRESS 

were somewhat exaggerated is probably true. An 
acute historian has recently pointed out that "between 
1783 and 1787, the country had passed through a 
period of economic adjustment. This was now coming 
to an end ; and commerce and industry were beginning 
to thrive ; but this fact was not recognized at the time. 
Contemporary evidence as to actual conditions is 
always very misleading. The onlooker sees only a 
portion of any field, is influenced by local and personal 
considerations, and is governed largely by his own 
immediate experience. Statistics that are accessible 
to us, but were unattainable by the voters in 1786 and 
1787, demonstrate the truth of the theory that com- 
mercially and industrially the country had regained its 
prosperity by 1788 and was on the highroad to it in 
1786." 1 That there were some statesmen who per- 
ceived that economic conditions were improving is seen 
from letters written by Benjamin Franklin from 
Philadelphia to English correspondents. 2 

Sir, I fear it is more in vicious manners than in mistakes in form (of government) 
that we must seek for the causes of the present discontent.'* 

1 History of the United States (1912), by Edward Channing, III, 481. Charles 
A. Beard in An Economic Interpretation of the Constitution (1913), p. 48, makes a 
similar suggestion : " Certainly the inflamed declarations of the Shaysites are not 
to be taken as representing accurately the state of the people, and just as certainly 
the alarmist letters and pamphlets of interested persons on the other side are not 
to be accepted without discount. When it is remembered that most of our history 
has been written by Federalists, it will become apparent that great care should be 
taken in accepting, without reserve, the gloomy pictures of the several conditions 
prevailing under the Articles of Confederation. In fact, a very learned, thou/'h 
controversial historian, Henry B. Dawson, in an article published more than forty 
years ago, makes out quite a plausible case (documented by minute research) for 
the statement that the * chaos' of which historians are wont to speak, when 
dealing with the history of the years 1783-87, was a creation of their fancies." See 
The Historical Magazine (1871), Second Series, IX, pp. 157 et seq. 

2 Franklin to William Hunter, Nov. 24, 1786 ; to Edward Bancroft, Nov. 26, 
1786 ; to Duke de Rochefoucauld, April 15, 1787. These letters possibly are to be 
received with caution as depicting with entire accuracy the real situation ; for it 
must be noted that there were many statesmen in England who were giving cur- 
rency to statements that the United States was on the point of economic and politi- 
cal dissolution and nearly ready to rejoin the mother country, and who were using 
such reports as a basis for their contention that no commercial treaty should be 
entered into with the United States. Franklin may possibly have been painting 
the picture in too optimistic colors in order to counteract these misleading English 



THE DELEGATES, PUBLIC, AND PRESS 87 

Whatever may have been the real facts, however, as 
to the advance towards recovery of prosperity in 1787, 
it is undoubtedly true that "this fact was not recognized 
at the time", by the general public. 1 This is one of the 
instances in which what the people believed was more 
important than what the actual fact was. 2 And un- 
doubtedly, there was a very widespread belief, enter- 
tained not only by the mercantile and professional 
classes, but by the farmers as well, that return of 
prosperity would be promoted by a reform in the 
Government. And as William Bingham, a Member of 
Congress from Pennsylvania, wrote to Dr. Richard 
Price, December 1, 1786: "Our resources are great, 
the industry and intelligence of our people are not to be 
surpassed ; and I do not believe there exists a greater 
fund of public and private virtue than in this country. 

stories. James Winthrop ("Agrippa"), however, in Massachusetts Gazette, Nov. 
30, 1787, wrote : " Let any man look around his own neighborhood, and see if the 
people are not with a very few exceptions, peaceable and attached to the Govern- 
ment, if the country had ever within their knowledge more appearance of industry, 
improvement and tranquillity. . . . Circumstances all denote a general prosper- 
ity. One class of citizens indeed suffer greatly. . . . The publick creditors . . . 
the ship carpenters." 

1 In The Rise of American Civilization (1927), by Charles A. Beard and Mary 
R. Beard, it is said (p. 302) : " It has become the fashion to draw a doleful picture 
of the age, yet an analysis of the data upon which that view is built raises the specter 
of skepticism. The chief sources of information bearing on this thesis are the asser- 
tions and lamentations of but one faction in the great dispute, and they must, 
therefore, be approached with the same spirit of prudence as Whig editorials on 
Andrew Jackson or Republican essays on Woodrow Wilson.*' This analogy is 
inaccurate. For, certainly prior to the political campaign for and against the rati- 
fication of the Constitution, the newspapers of the period were open to correspond- 
ence from more than the "one faction"; and those who believed that prosperity 
existed were as able to make known their views as were those who believed that 
conditions were tending towards disaster and ruin. 

2 Connecticut Gazette, Nov. 9, 1787 : "Hear the complaints of our farmers, whose 
unequal oppressive taxes in every part of the country amount to nearly the rent of 
their farms. Hear too the complaints of every class of public creditors. See the 
number of our bankruptcies. Look at the melancholy countenances of our mechan- 
ics who now wander up and down our streets without employment. See our ships 
rotting in our harbors or excluded from nearly all the ports in the world. Listen 
to the insults that are offered to the American name and character in every Court 
of Europe. See order and honor everywhere prostrate in the dust, and religion with 
all her attendant train of virtues about to quit this Continent forever. View these 
things, fellow citizens, and then say that we do not require a new, a protecting and 
efficient Federal Government, if you can." 



88 THE DELEGATES, PUBLIC, AND PRESS 

Nothing is wanting but a good government to direct 
these advantages to public good and private benefit." 

Unquestionably, there were many men who were 
opposed to increase of Executive power, to any tendency 
towards military domination, and to proposals to vest 
Congress with such powers as might overthrow the 
State Governments, and who feared lest the calling of a 
Convention should result in the suggestion of an 
aristocratical or monarchical form of Government. 
These men re-echoed the fears which Rufus King and 
Elbridge Gerry had expressed, two years before, in 
refusing to lay before Congress a memorial of the 
Massachusetts Legislature in favor of the calling of 
a Convention. Though both King and Gerry had, in 
1787, changed their minds on the subject, they had, in 
1785, apprehended that such a measure "would pro- 
duce throughout the Union, an exertion of the friends 
of aristocracy to send members who would promote a 
change of Government " : 

"Plans have been artfully laid and vigorously pursued 
which, had they been successful, we think would inevitably 
have changed our Republican Governments into baleful 
aristocracies. Those plans are frustrated, but the same 
spirit remains in their abettors. And the Institution of the 
Cincinnati, honourable and beneficent as the views may have 
been of the officers who compose it, we fear, if not totally 
abolished will have the same fatal tendency. 'More power 
in Congress,' has been the cry from all quarters ; but espe- 
cially those whose views, not being confined to a Government 
that will best promote the happiness of the people, are 
extended to one that will afford lucrative employments, and 
military. Such a Government is an aristocracy, which 
would require a standing army and a numerous train of 
pensioners and placemen to prop and support its exalted 
administration." 

But opposition to the Federal Convention on the 
above grounds had, by the spring of 1787, very greatly 



THE DELEGATES, PUBLIC, AND PRESS 89 

diminished, and there is little evidence of it in the 
newspapers or in the correspondence of the day. 

It is a significant fact that the regions where antago- 
nism chiefly existed were the frontier farming settle- 
ments and the small towns distant from the seaboard, 
which were little reached by the newspapers and which 
had few sources of information as to conditions pre- 
vailing outside. Where communities were ignorant of 
legislation in other States, productive of political or 
other evils, it was natural that they should feel a 
minor interest in the Union and a more active desire 
for the supremacy of their own particular State. 1 
As a New Hampshire paper said, in the spring of 
1787: "One great cause of the discontents of the 
back country is their total want of regular intelligence. 
This gives designing men an opportunity of forging 
the grossest falsehoods and propagating them with- 
out fear of detection, there being no publick news- 
papers to stare them in the face, and contradict what 
they assert." 2 So, a Connecticut newspaper, com- 
menting on the division of men into two parties over 
the question of imparting additional power to the 
Government, attributed the difference largely to lack 
of information : 

1 See The Constitution of the United Stales An Historical Survey of Its For- 
mation (1923), by Robert Livingston Schuyler, p. 27: "Under such conditions, 
men's interests naturally centered in their own localities, and the patriotism of many 
a sturdy Revolutionist was bounded by the limits of his own State. Why should 
those who had taken up arms against the claim of Parliament to tax them, and who 
had 'grumbled at the laws it passed for the regulation of their trade, promptly con- 
cede these very powers to another central and remote government?" 

2 See Pennsylvania Packet, Jan. 3, 1787; New Hampshire Spy, Feb. 16, 1787; 
Connecticut Courant, Nov. 20, 1786 ; see also New York Gazette, Jan. 1, 1787. Noah 
Webster wrote to Timothy Pickering from Boston, Sept. 13, 1786, as to the dis- 
turbances in Massachusetts : "The mob is headed by some desperate felons, with- 
out property or principle. Many well-meaning people are led into opposition 
merely by false information ; and the truth, diffused among the people at large, 
would soon restore tranquillity." Pickering Papers M SS., XIX, 78. A letter from 
Newburyport, Mass., in Pennsylvania Packet, Jan. 8, 1787, discussed the effect of 
the Massachusetts tax on newspapers which drove them out of business and pre- 
vented information from getting to the people, thus promoting the cause of the 
insurgents. 



90 THE DELEGATES, PUBLIC, AND PRESS 

"There are two parties in this State, jealous of each other 
federal and antifederal. The federal men suppose the 
antifederal to be knaves, artful, designing demagogues. 
The antifederal suppose the federal to be ambitious, tyran- 
nical men who are aiming at power at the expense of the 
people at large. . . . The antifederal think as they have 
been bred their education has been rather indifferent 
they have been accustomed to think on the small scale 
they can think on no other without an enlargement of their 
minds. Besides, most of them live remote from the best 
opportunities of information, the knowledge they acquire 
is late, and is longer in producing conviction in their minds 
than in more enlarged minds. . . . Were the antifederal 
men in this State to travel, to sit in Congress, to converse 
with men who understand foreign policy, in short, were they 
to view this State and the Continent in their true connec- 
tion with other nations, they would think like the federal 
men and join in their measures." 

That education in political conditions was necessary 
before effective reforms could be made, was interest- 
ingly commented upon by Dr. Benjamin Rush in 
writing to Dr. Richard Price, in 1786: "Republics 
are slow in discovering their interest, but when once 
they find it out, they pursue it with vigor and per- 
severance. Nothing can be done by our public bodies 
till they carry the people along with them, and as the 
means of propagating intelligence and knowledge in 
our country are as yet but scanty, all their movements 
are marked with appearances of delay and procrasti- 
nation." l 

It may be confidently stated, however, from a review 
of contemporary newspapers, that in the spring of 1787 
the reading public of the several States were, in general, 
well-informed as to the conditions which the greater 

1 Price Papers in Mass. Hist. Soc. Proc., 2d Series (1903), XVII. Rush to Price, 
April S2; on May 25, 1780, he wrote: "An opinion seems to have pervaded all 
classes of people that an increase of power in Congress is absolutely necessary for 
our safety and independence.** 



THE DELEGATES, PUBLIC, AND PRESS 91 

part of their leaders believed rendered the calling of a 
Constitutional Convention imperative. Of the high 
hopes which were rested on that body and its perform- 
ance, ample proof is given in the amount of space which 
the newspapers devoted to it and its members. Skepti- 
cism and distrust were entirely absent, and confidence 
in the results of the work of the delegates was apparent 
in all the papers. A letter published in December, 

1786, and widely copied, expressed a view evidently 
generally felt : l 

"A correspondent observes that every true patriot must 
be pleased with the very respectable delegation appointed 
by the State of Virginia to meet in Convention for Federal 
purposes in this city in May next. The names of Washing- 
ton, Wythe, arid Randolph will ever be held in the highest 
veneration by every lover of American history. It is to be 
hoped that the Assembly of Pennsylvania will appoint some 
of her first political characters to meet those illustrious 
statesmen and friends to their country before the present 
session expires. ... A Convention composed of such and 
similar characters will, undoubtedly, be able to remove the 
defects of the Confederation, produce a vigorous and ener- 
getic Continental Government which will crush and destroy 
faction, subdue insurrections, revive public arid private 
credit, disappoint our transatlantic enemies and their lurk- 
ing emissaries among us, and finally (to use an Indian phrase) 
endure 'while the sun shines and the rivers flow.'" 

As the date for its meeting approached, a very 
general interest in the Convention was evident through- 

1 Independent Gazetteer, Dec. 27, 1786 ; see also Connecticut Courant, Jan. 8, 

1787, and many other papers. The lists of delegates appointed by Massachusetts, 
New York, Georgia, South Carolina, Delaware, Maryland, and Connecticut 
appeared successively in the Pennsylvania papers. Pennsylvania Herald, March 
7. 14, May 2 ; Pennsylvania Journal, March 10, 28 ; Independent Gazetteer, Jan. 
27, March 8, 17, April 3, 12, June 1 ; Pennsylvania Packet, May 17, 1787 ; see also 
Maasachiuiett* Centinel, and New York Daily Advertiser, passim, in the spring of 
1787. The Pennsylvania Journal, March 10, stated : " By a letter from Annapolis 
we are informed of several solemn conferences between both Houses of the Legis- 
lature of that State ; deputies have been nominated to the Grand Convention . . . 
from whose united deliberations and wisdom so much dignity and benefit to the 
Confederation ex, ^ctad bj "jvery well wisher to liberty and independence." 



92 THE DELEGATES, PUBLIC, AND PRESS 

out the newspapers. In April, the Philadelphia and 
many other papers printed a Richmond despatch, 
giving the grateful news of Washington's decision to 
attend : l 

"It is with peculiar satisfaction we inform the public that 
our illustrious fellow citizen, George Washington, Esquire, 
has consented to serve on the ensuing Federal Convention 
to be held in Philadelphia, the second Monday in May next, 
and that his Excellency, Edmund Randolph, Esquire, pur- 
poses leaving this city early in that month on the same 
business. Should a delegation attend from each or a major- 
ity of the States, chosen with that circumspection and wis- 
dom which governed the Legislature of this Commonwealth, 
what happy consequences may not all the true friends to 
Federal Government promise themselves from the united 
zeal, policy and ability of so august an assembly." 

A letter from Boston was printed by the Philadelphia 
papers, stating : 2 

"The political existence of the United States perhaps 
depends on the results of the Convention which is to be held 
in Philadelphia in May next, for the purpose of forming a 
National Government. The acknowledged necessity of the 
measure has induced nine States ... to appoint delegates." 

Another from Boston said : 

"The States of America cannot be said to be under a 
Federal head, when they will not acknowledge any suprem- 
acy in Congress. In time of war, we were bound together 
by a principle of fear; that principle is gone. We are no 
longer United States because we are not under any firm and 
energetic compact. The breath of jealousy has blown the 

1 Independent Gazetteer, April 21, 26 ; Pennsylvania Herald, April 28 ; Pennsyl- 
vania Journal, April 28, 1787. 

2 Pennsylvania Journal, April 14 ; Pennsylvania Herald, April 14 ; Independent 
Gazetteer, April SO. 1787; Massachusetts Centinel, April 4, 11, 14, 1787; New Hamp- 
shire Spy, Feb. 6, April SO, 1787. A despatch from Worcester, Mass., in the New 
York Daily Advertiser, May 8, 1787, said: "It is now the general opinion that, 
unless some wise plan should be proposed by the Federal Convention and adopted 
by the several States, our republican Governments will speedily terminate What 
will take their place, heaven only knows." 



THE DELEGATES, PUBLIC, AND PRESS 93 

cobweb of our Confederation asunder. Every link of the 
chain of union is separated from its companion. We live, 
it is true, under the appearances of friendship, but we 
secretly hate and envy and endeavor to thwart the interest 
of each other. ..." 

A New Hampshire paper said : 

"We are happy to hear that the citizens of the American 
States begin to be more deeply impressed with the impor- 
tance of having a Federal head for we are headless at 
present. We sincerely wish that this event, the vesting of 
the United States in Congress assembled, with powers suf- 
ficient to regulate the internal and external police of the 
States may speedily be effected on it, in a great measure, 
depends the political salvation of this country." 

A letter from New York to Baltimore, in April, said : 

"The effect of the Convention soon to be held at Phila- 
delphia, creates much conjecture and political speculation. 
The nature and excellency of the different kinds of govern- 
ments that have ever existed or have ever been treated upon 
is here every day discussed, explained, demonstrated, dis- 
sected, reviewed and placed in every possible light, by every- 
body on every occasion ; and we have as many predictions 
of the fate of America as if the prophetic spirit of the ancient 
Jews had remained among us." 

Another Boston despatch commented on the hopes 
entertained of the coming Convention, as follows : * 

"Reasonably is it to be expected that the deliberations of 
the sages and patriots who are to meet in Convention at 
Philadelphia next month will be attended with much good. 
An union of the abilities of so distinguished a body of men, 
among whom will be a Franklin and Washington, cannot but 
produce the most salutary measures. These last names 
affixed to their recommendations (and it is to be hoped that 
this will be the case) will stamp a confidence in them* which 
the narrow-souled antifederal politicians in the several 

1 Independent Chronicle (Boston), May 17, 1787. 



94 THE DELEGATES, PUBLIC, AND PRESS 

States, who by their influence have hitherto damned us as a 
Nation, will not dare to attack or endeavour to nullify." 

And the Pennsylvania Journal of May 11 empha- 
sized the importance of the Convention : * 

"A correspondent observes that, as the time approaches 
for opening the business of the Federal Convention, it is 
natural that every lover of his country should experience 
some anxiety for the fate of an expedient so necessary, yet 
so precarious. Upon the event of this great Council, indeed, 
depends everything that can be essential to the dignity and 
stability of the National character. . . . All the fortunes 
of the future are involved in this momentous undertaking. 
The imperfections and debility of the League, framed during 
a struggle for liberty and political existence, were obscured 
and concealed by the ardor of enterprise and the proximity 
of danger. The feelings ol the people were then more 
obligatory than the positive injunction of law; and men 
in pursuit of an important object required no consideration 
to discharge their duty, but their interests and their passions. 
Though the Federal compact, therefore, thus fortified might 
be adequate to the acquisition, yet from the nature and dis- 
position of human affairs, it becomes inadequate to the 
preservation, of sovereign power. Unless some rule is pre- 
scribed, some motive introduced which, in a state of tran- 
quillity, will enforce a regard to the general interest equal 
to the voluntary enthusiasm arising from common suffering 
and apprehension, we have only exchanged tyranny for 
anarchy, we have idly preferred the prospect to the posses- 
sion of a jewel, and have wasted our strength and riches 
in accomplishing the revolution, merely to furnish another 
memorable tale for the historian's pen." 

One striking fact should be especially noted that, 
during the six months prior to the meeting of the 
Convention, practically no comment appeared in the 
newspapers critical of or derogatory to the character or 

1 Pennsylvania Journal, May 11, 1787, reprinted in Virginia Independent Chron- 
icle, May 23, 1787; Massachusetts Centinel, May 17, 1787, and in other papers. 



THE DELEGATES, PUBLIC, AND PRESS 95 

motives of the delegates elected by the various States. 
It was clearly believed by their contemporaries, that 
they were wise and able men, who were to assemble 
with a pure and disinterested purpose not for the 
sake of framing a Government in their own interests, 
but a Government which should be strong, National, 
and lasting, in the interests of the whole people. This 
continued to be the popular belief and sentiment 
throughout the sessions of the Convention itself. It 
was only after the ratification of the Constitution 
became the subject of a bitter, partisan, political 
campaign in the fall of 1787 and the spring of 1788, 
that any personal attacks on the framers were published. 
In Part Two of this book, the actions of the Federal 
Convention, the views of the delegates and of other 
prominent statesmen as presented in their letters, and 
the sentiments of the correspondents and editors of the 
newspapers, are now to be described and reproduced, 
as they occurred or were written or published from day 
to day presenting a daily picture of the political 
situation, both inside and outside the Convention, 
from its convening on May 14, until its adjournment 
on September 17, 1787. 



PART TWO 
DURING THE CONVENTION 



CHAPTER ONE 

THE OPENING OF THE CONVENTION 



(May 13) . . 
May 14-May 24 

(May 20) . . 
May 25, 26, 28 
(May 27) . . 



(Sunday) 

Preliminary Meetings 
(Sunday) 
Organization 
(Sunday) 



SUNDAY, MAY 13, 1787 

On this day, General Washington, who had left 
Mount Vernon, a little after sunrise, Wednesday, May 
9, arrived in Philadelphia. He occupied during the 
Convention the house owned by Robert Morris. Of 
his arrival, Madison wrote to Jefferson (May 15) 
that it was "amidst the acclamation of the people, as 
well as more sober marks of the affection and veneration 
which continues to be felt for his character." The 
Journal described the event as follows : "Sunday last, 
his Excellency General Washington a member of the 
grand Convention arrived here. He was met at some 
distance and escorted into the City, by the troop of 
horse and saluted at his entrance by the artillery. The 
joy of the people on the coming of this great and good 
man was shown by their acclamations, the ringing of 
bells, etc." The New York Daily Advertiser said that 
Washington's arrival "was announced by a salute of 
the United States from the train artillery and the ring- 
ing of bells. He was escorted from Chester by the 
City Light Dragoon, and has taken apartments at 



100 THE OPENING OF THE CONVENTION 

Mrs. House's, one of the most genteel boarding houses 
in this city." l 

Washington himself wrote in the diary which he kept 
from the date of his departure from Mount Vernon to 
the date of his return : 2 

"About 8 o'clock, Mr. Corbin and myself set out, and 
dined at Chester (Mrs. Withys), where I was met by Genls. 
Mifflin (now Speaker of the Pennsylvania Assembly), Knox 
and Varnum ; the Colonels Humphreys and Minges ; and 
Majors Jackson and Nicholas, with whom (after dinner) 
I proceeded to Philada. At Gray's Ferry, the city light 
horse, commanded by Colo. Miles, met me and (by whom 
and a large concourse I was escorted) escorted me in by the 
artillery officers who stood arranged at the entrance of the 
City and saluted as I passed. Alighted through a crowd 
at Mrs. House's, but being again warmly and kindly pressed 
by Mr. and Mrs. Robert Morris to lodge with them, I did 
so, and had my baggage removed thither. Waited on the 
President, Doctr. Franklin, as soon as I got to town. On my 
arrival the bells were chimed." 

Robert Morris, as early as April 23, had invited 
Washington to be his guest while in Philadelphia : 3 

1 Pennsylvania Journal, May 16 ; Freeman's Journal, May 16 ; New York Daily 
Advertiser, May 18, 1787. The boarding house of Mrs. Mary House was at Fifth 
and Market Streets. In the American Museum, for August, 1787, a magazine 
published in Philadelphia by Mathew Carey, there appears "Verses on General 
Washington's Arrival in Philadelphia", by Philip Freneau. 

Jacob Hiltzheimer, a prominent German farmer and stock breeder of Phila- 
delphia, wrote in his Diary (1893) on May IS, 1787 : " Went twice to church. This 
evening his Excellency General Washington arrived in the city from his seat in Vir- 
ginia. The City Troops of horse received him at Mr. Gray's Ferry ; the artillery 
company saluted with firing their cannon/' 

Morris* house, on Market Street east of Sixth, was the finest private residence 
in the city. It was built of brick, three stories high, with three windows on the first 
floor and four windows on the second and third floors, two on either side of the main 
hall. The main building was forty-two feet wide by fifty-two feet deep, and the 
kitchen and washhouses twenty feet wide by fifty-five feet deep. The stables 
would accommodate twelve horses. On each side of the house were vacant lots used 
as a garden and containing trees and shrubbery. See Manuscript of Robert Morris 
(1876), by Henry A. Homes. 

8 Except in some matters of punctuation and abbreviation, I have followed, in 
general, the version of the diary given in The Diaries of George Washington (1925), 
edited by John C. Fitzpatrick. 

* Washington Papers HSS. in Library of Congress. 



MONDAY, MAY 14, 1787 101 

"The public papers have announced your consent to serve 
as a member of the Convention to be held in this City, This 
is what I ardently wished for and I am truly rejoiced at it. 
I was only restrained from writing to you by motives of 
delicacy, thinking that your own judgment rather than the 
persuasion of friends ought to determine. I hope Mrs. 
Washington will come with you and Mrs. Morris joins me in 
requesting that you will, on your arrival come to our house 
and make it your home during your stay in this City. We 
will give you as little trouble as possible and endeavour to 
make it agreeable. It will be a charming season for travel- 
ling, and Mrs. Washington, as well as yourself will find bene- 
fit from the journey, change of air, etc. As I hope soon for 
the pleasure of seeing you, I will only add that you must not 
refuse our request and the honor you confer by acceptance 
shall ever be considered a great favour." 



MONDAY, MAY 14, 1787 

On this day, the date appointed for its assembling, 
the Federal Convention met in the State House (old 
Independence Hall). The official minutes state as 
follows : 

"On Monday, the 14th day of May A.D. 1787, and in the 
eleventh year of the independence of the United States of 
America at the State House in the City of Philadelphia, in 
virtue of appointments from their respective States, sundry 
deputies to the Federal Convention appeared ; but a major- 
ity of the States not being represented, the members pres- 
ent adjourned, from day to day, until Friday, the 25th of 
said month." 

Washington noted in his diary : 

"This being the day appointed for the Convention to 
meet, such members as were in town assembled at the State 
House, but only two States being represented, viz. Virginia 
and Pennsylvania, agreed to attend at the same place to- 



102 THE OPENING OF THE CONVENTION 

morrow (at 11 o'clock). Dined in a family way at Mr. 
Morris's (and drank tea there)/' 

The newspapers announced the opening of the Con- 
vention as follows : 1 

"Yesterday a number of the honorable the delegates from 
the States of Pennsylvania, Delaware, Virginia and North 
Carolina, to the Federal Convention appointed to be held 
in this city, met at the State House. The South Carolina 
members have arrived, and from every information we have 
reason to conclude that the representation will be com- 
plete in a few days." 

TUESDAY, MAY 16, 1787 

The Convention met and adjourned, as the requisite 
majority of the thirteen States were not yet represented 
by a sufficient number of delegates to act for the States 
respectively. 

Washington noted in his diary : 

"Repaired at the hour appointed to the State House, but 
no more States being represented than were yesterday tlio' 
several more members had come in (viz. No. Carolina and 
Delaware, as also New Jersey) we agreed to meet again 
tomorrow. Gov. Randolph from Virginia came in today. 
Dined with the members, to the General Meeting of the 
Society of the Cincinnati." 

Madison wrote to Jefferson, this day, that: "The 
Governor, Messrs. Wythe and Blair and Doctor Mc- 
Clurg are also here. . . . There is less punctuality on 
the outset than was to be wished. Of this, the late bad 
weather has been the principal cause." 

1 Pennsylvania Packet, May 15 ; Pennsylvania Journal, May 16, 1787. The 
Philadelphia newspapers quoted in this book are the two dailies the Pennsyl- 
vania Packet and Independent Gazetteer; the two semi-weeklies, the Pennsylvania 
Journal and Pennsylvania Herald; and the two weeklies, the Pennsylvania Gazette 
and Freeman's Journal. For conciseness, when the names of these papers are used 
in the text, they are termed respectively, the Packet, Gazetteer, Journal, Herald, 
Gazette, and Freeman's Journal. 



WEDNESDAY, MAY 16, 1787 103 

WEDNESDAY, MAY 16, 1787 

The Convention again met and adjourned, a quorum 
of States not being present. The Packet said that 
representatives from seven States (New York, New 
Jersey, Virginia, Delaware, Maryland, North Carolina 
and South Carolina) were "now in town"; but the 
representation of no State was sufficiently full to allow 
the Convention to do business. 

Washington noted in his diary : 

"No more than two States being yet represented, agreed 
till a quorum of them should be formed to alter the hour of 
meeting at the State House to one o'clock (Dr. McClerg of 
Virginia came in). Dined at the President Doctor Frank- 
lin's, and drank tea, and spent the evening at Mr. Jno. 
Perm's." 

As to this dinner, Franklin wrote to Thomas Jordan : 
"I received your very kind letter of February 27th, to- 
gether with the cask of porter you have been so good as to 
send me. We have here at present what the French call 
une assemble des notables, a Convention composed of some 
of the principal people from the several States of our Con- 
federation. They did me the honor of dining with me last 
Wednesday, when the cask was broached, and its contents 
met with the most cordial reception and universal appro- 
bation. In short, the company agreed unanimously, that 
it was the best porter they have ever tasted." 

Of Franklin's active interest in discussion of the 
science of government, an interesting illustration may 
be found in the fact that in the preceding February, a 
"Society for Political Enquiries" had been formed in 
Philadelphia, consisting of fifty members, with Franklin 
as its President, and George Clymer and William 
Bingham as Vice Presidents, and with its object, the 
study of government. Its Rules and Regulations 
stated that: "While objects of subordinate impor- 
tance have employed the associated labors of learned 



104 THE OPENING OF THE CONVENTION 

and ingenious men, the arduous and complicated science 
of government has been generally left to the care of 
practical politicians or the speculations of individual 
theorists. From a desire, therefore, of supplying this 
deficiency and of promoting the welfare of our country, 
it is now proposed to establish a society for mutual 
improvement in the knowledge of government and for 
the advancement of political science." * Only three 
days before the Federal Convention met, a paper was 
read at a meeting of this Society at Franklin's house on 
May 11, entitled "An Enquiry into the Principles on 
which a Commercial System for the United States of 
America Should be Founded." 2 

A portrayal of the political and economic situation, 
in general, appeared this day in a letter in Freeman's 
Journal, as follows : 3 

"It seems to be generally felt and acknowledged that the 
affairs of this country are in a ruinous situation. With a 
vast resource in our hands we are impoverished by the con- 
tinual drain of money from us in foreign trade ; our naviga- 
tion is destroyed; our people in debt and unable to pay; 
industry is at a stand ; our public treaties are violated, and 

1 Pennsylvania Packet, March 27, 1787. At this period, moreover, lectures on 
political topics were a frequent occurrence. Amongst those whose views were thus 
presented was Noah Webster, who, with Pelatiah Webster, had been among the 
earliest political writers to suggest the desirability of a Federal Convention to frame 
a new Constitution. Lectures by him were advertised in the Pennsylvania Packet, 
Jan. 18, 1787, as follows: "On Saturday evening, the 20th instant at 7 o'clock at 
the University, Mr. Webster proposes to read some remarks on the present state 
of our public affairs on the connection between opinions, manners, and com- 
merce. It will be considered how far our manners defeat the purposes of the Revo- 
lution, and how far the interest and taste of Americans are sacrificed to fashion and 
opinion. The public are most respectfully informed that this and another Lecture 
to be delivered upon a similar subject are not designed for amusement. They are 
designed for people who have leisure and inclination to devote one hour to serious 
reflection, as their object is to unfold some of the less visible causes of our political 
embarrassments. They are designed for thinking men of every denomination ; and 
the first is particularly calculated for ladies of sentiment, who are very influential 
in manners. Tickets at 3/9 to be sold by Mr. Cruikshank and Mr. Bailey, printers, 
and at the door." 

2 See American Museum (June, 1787), I, 496. It was written by Tench Coxe. 

3 Printed also in Pennsylvania Gazette, June 13, 1787, as a despatch from New 
York. 



THURSDAY, MAY 17, 1787 105 

National faith, solemnly plighted to foreigners and to our 
own citizens, is no longer kept. We are discontented at 
home, and abroad we are insulted and despised. In this 
exigency, people naturally look up to the Continental Con- 
vention, in hopes that their wisdom will provide some effec- 
tual remedy for the complication of disorders. It is perhaps 
the last opportunity which may be presented to us of estab- 
lishing a permanent system of Continental Government; 
and if this opportunity be lost, it is much to be feared that 
we shall fall into irretrievable confusion. How the great 
object of their meeting is to be attained is a question which 
deserves to be seriously considered. Some men, there is 
reason to believe, have indulged the idea of reforming the 
United States by some refined and complicated schemes of 
.organizing a future Congress in a different form. These 
schemes . . . will be found to be merely visionary. . . . 
The source of all our misfortunes is evidently in the want of 
power of Congress. . . . To remedy these only, some have 
weakly imagined that it is necessary to annihilate the several 
States and vest Congress with the absolute direction and 
government of the Continent as one single republic. This, 
however, would be impracticable and mischievous. In so 
extensive a country, many local and internal regulations 
would be required, which Congress could not possibly attend 
to, and to which the States individually are fully competent ; 
but those things which alike concern all the States, such as 
our foreign trade and foreign transactions, Congress should 
be fully authorized to regulate, and should be invested with 
the power of enforcing their regulations. . . . Would it not 
then be right to vest Congress with the sole and exclusive 
right of regulating trade . . . and deciding all questions by 
their own authority which concern foreign trade and naviga- 
tion upon the high seas P" 

THURSDAY, MAY 17, 1787 

The Convention again met and adjourned; and 
Washington noted : 1 

1 Mr. Samuel Powell was Mayor of Philadelphia. 



106 THE OPENING OF THE CONVENTION 

"Mr. Rutledge from Charleston and Mr. Charles Pinck- 
ney from Congress (New York) having arrived gave a 
representation to So. Car., and Col. Mason getting in this 
evening placed all the Delegates from Virginia on the floor 
of Convention. Dined at Mr. Powell's and drank tea there." 

It was probably at one of these fruitless meetings of 
the Convention that Washington said to the delegates 
informally assembled the notable words which Gouver- 
neur Morris later reported : "He was collected within 
himself. His countenance had more than usual 
solemnity. His eye was fixed, and seemed to look into 
futurity. 'It is' (said he) 'too probable that no plan 
we propose will be adopted. Perhaps another dreadful 
conflict is to be sustained. If to please the people, we 
offer what we ourselves disapprove, how can we after- 
wards defend our work? Let us raise a standard to 
which the wise and honest can repair. The event is 
in the hand of God.'" J 

FRIDAY, MAY 18, 1787 

The Convention met and adjourned ; and Washing- 
ton noted : 

"The representation from New York appeared on the 
floor today. Dined (at a Club) at Gray's Ferry (over the 
Schuylkill) and drank tea at Mr. Morris'; after which 

accompanied Mrs. and some other ladies to hear a 

Mrs. O'Connell read (a charity affair), the lady being re- 
duced in circumstances had had recourse to this expedient 
to obtain a little money. Her performance was tolerable, 
at the College Hall." 

Of this reading, the Gazetteer gave the following 
comment : 2 

1 Funeral Oration on the death of Washington, by Gouverneur Morris, at New 
York City, Dec. 31, 1799. 

2 Independent Gazetteer, May 22, 29, 1787. The College Hall, where the Lectures 
were given was at Fourth Street below Arch. 

The Packet had said, May 16, that at this lecture, "an Arabian Ode translated 



FRIDAY, MAY 18, 1787 107 

"Notwithstanding the tempestuous weather, the equally 
amiable and illustrious General Washington, accompanied 
by a brilliant crowd of his friends of both sexes proceeded 
to the University to hear a Lady deliver a Lecture on the 
Power of Eloquence. This, a superficial observer, accus- 
tomed to undervalue all female talents, might denominate 
condescension. So it certainly was ; but the man of judg- 
ment and penetration would conclude that a soul like Cyrus 
or Scipio only could be capable of such attention and 
patronage." 

And in another account, it said : 

"His Excellency General Washington, notwithstanding 
the violence of the storm, attended the Lecture on Elocu- 
tion in the Hall of the University, accompanied by a crowd 
of elegant ladies in their most splendid appearance. The 
honor which his presence reflected on the Lady's exertion 
was evident in her anxiety to express more copiously, em- 
phatically and distinctly the sublimer parts of composition, 
which occurred in the course of the lecture. This observa- 

by Sir William Jones will be introduced" and that *'a remarkable history of con- 
jugal love and madness, translated from the Greek of Xenophon, the Philosopher, 
by John O'Connor will be read, which will conclude this course of Belles Lettres." 

On May 22, the Independent Gazetteer stated that the lady read extracts from 
poems of Sir William Jones in her lectures and from "Solima", before Gen. Wash- 
ington, "whom we find devoting a part of his time in patronizing arts and science." 
In the same paper "Eusebius" wrote, asking the Lady to read "some celebrated 
tragedy and pure comedy", and that the "female circle" is anxious "to hear a play 
fraught with purity of virtue and elegance of diction delivered by you . . . the 
tragedy of Zara or Lear, read by a woman of virtue possessed, like you, of copious 
voice and fine expression." 

These lectures had been described in an advertisement in the Pennsylvania Herald, 
May 16, 1787, as follows : 

" A second course of lectures by a Lady. The first lecture of this course will be 
read in the University on Thursday, the 10th instant at half past seven o'clock 
precisely. It will contain, exclusive of the preliminary discourse on the origin of 
language, such selections from Milton, Shakespeare, Thomson, Pope, Young, and 
Shenstone as have a tendency to improve the heart and enlarge the understanding. 
The Elegy on Laura, translated from Petrarch by Sir William Jones, will be read, 
that evening, at the particular request of several ladies who have already heard and 
admired this delightful composition. The numerous attendance on these readings 
is ample proof of their innocence and rationality, especially when it is considered 
that the audience was composed of gentlemen of the learned professions, ladies of 
the most elevated rank and fortune, as well as a number of eminent citizens who 
introduced their wives and daughters into a society where nothing could be heard 
but the beauties of poetical genius, selected with care and an anxiety to convey 
general satisfaction." 



108 THE OPENING OF THE CONVENTION 

tion was evinced most clearly by her pathetic recitation of 
the prayer of Demosthenes to the immortal Gods." 

The Gazetteer, this day, printed a poem in fourteen 
stanzas "on the Meeting of the Grand Convention," 
in which the following optimistic expression occurred : 

"Faction shall cease. Industry smile. 
Nor next door neighbours each revile, 
But friendly bands combine. 
The powerful league will all unite, 
Destroy invidious smiles and spite 
As harmony both join." 

Benjamin Franklin wrote, this day, to Richard Price 
in England: "We have now meeting here a Con- 
vention of the principal people in the several States, 
for the purpose of revising the Federal Constitution, 
and proposing such amendments as shall be thoroughly 
necessary. It is a most important business, and I hope 
will be attended with success." 1 

SATURDAY, MAY 19, 1787 

The Convention met and adjourned ; and Washing- 
ton noted : 

"No more States represented. Agreed to meet at one 
o'clock on Monday. Dined at Mr. [Jared] IngersolFs, spent 
the evening at my lodgings and retired to my room soon." 

The Journal and Herald printed a list of the dele- 
gates appointed, and noted the arrival of only four- 

1 Franklin began this letter : " My health continues as when Mr. Vaughan left 
us. My malady does not grow perceptibly worse, and I hope may continue toler- 
able to my life's end, which cannot now be far distant, being in my 82d year." Dr. 
Benjamin Rush had written to Richard Price, Oct. 27, 1786 : "Our venerable friend, 
Dr. Franklin, has found considerable benefit from the use of the remedy you recom- 
mended to him, joined with the blackberry jam. He informed me a few days ago 
that he had not enjoyed better health for the last 30 years of his life than he does 
at present. His faculties are in full vigor. He amuses himself daily in superin- 
tending two or three houses which he is building in the neighborhood of his dwelling 
house. One of them is for a printing office for his grandson, a promising youth who 
was educated by him in France (Benjamin Franklin Bache)." Price Papers in 
M ass. Hist. Soc. Proc., 2d Series (1903), XVII. 



SATURDAY, MAY 19, 1787 109 

teen from outside of Pennsylvania. 1 They also said : 
"Perhaps this city affords the most striking picture 
that has been exhibited for ages. Here at the same 
moment, the collective wisdom of the Continent 
deliberates upon the extensive politics of the con- 
federated empire, two religious conventions clear and 
disti|bute the streams of religion through the American 
world, and those veterans whose valour accomplished 
a mighty revolution are once more assembled to 
recognize their fellowship in arms and to communicate 
to their distressed brethren the blessings of peace." 

The reference to the "veterans" was to the fact that 
the Society of the Cincinnati had been holding its 
third General Meeting at Carpenter's Hall in Phila- 
delphia, since May 14. Among the delegates present 
were the following Members of the Federal Convention, 
Washington, Alexander Hamilton, Jonathan Dayton, 
and Thomas Mifflin, while the following Members 
Nicholas Gilman, David Brearley, and Charles C. 
Pinckney were also delegates of the Society; and 
probably about one half of the Members of the Con- 
vention also belonged to the Society. These facts must 
be borne in mind, in considering the attacks which were 
later made upon the Constitution as the work of a 
military caste. Though organized, in 1783, as a 
fraternal and benevolent society to foster patriotic 
efforts, the Cincinnati (and especially its provision that 
membership should descend to the "eldest male 
posterity") had, for four years before the Federal 
Convention, been the object of antagonism and ex- 
travagant denunciation. Four Legislatures South 
Carolina, Massachusetts, Pennsylvania, and Rhode 
Island had passed resolves against its institution. 

1 Prom New York Yates, Lansing, Hamilton ; New Jersey Brearley ; Dela- 
ware Read, Broom ; Virginia Washington, Randolph, Madison, Wythe ; North 
Carolina Spaight ; South Carolina Rutledge, Charles Pinckney ; Georgia Few. 
See also Massachusetts Centinel, May 26, 1787, and numerous other newspapers. 



110 THE OPENING OF THE CONVENTION 

Jefferson, Jay, John Adams, Franklin, Samuel Adams, 
Elbridge Gerry, Madison, Rufus King, and many 
other prominent statesmen had opposed it. And there 
was a general fear among the people against anything 
bearing the aspect of military domination or of he- 
reditary nobility, whether based on army service or 
otherwise. The meeting of this Society adjourned on 
this day, having elected Washington as President 
General, Thomas Mifflin as Vice President General, 
and Henry Knox as Secretary General. 

SUNDAY, MAY 20, 1787 

Washington noted in his diary : 

" (Went into the country with Mr. and Mrs. Morris.) 
Dined with Mr. and Mrs. Morris and other company at 
their farm (called the Hills). Returned in the evening and 
drank tea at Mr. Powell's." 

Washington wrote, this day, to Arthur Lee : 

" My rheumatic complaint having very much abated . . . 
I have yielded to what appeared to be the wishes of many of 
my friends, and am now here as a delegate to the Conven- 
tion. Not more than four States were represented yester- 
day. If any have come in since, it is unknown to me. 
These delays greatly impede public measures, and serve to 
sour the temper of the punctual members, who do not like 
to idle away their time." 

George Mason of Virginia wrote to his son, describing 
the situation in Philadelphia : 1 

"Upon our arrival here on Thursday evening, seventeenth 
May, I found only the States of Virginia and Pennsylvania 
fully represented; and there are at this time only five 
New York, the two Carolinas, and the two before mentioned. 
. . . The expectations and hopes of all the Union centre 
in this Convention. God grant that we may be able to 

1 See Pennsylvania Packet, May 26, 1787. 



SUNDAY, MAY 20, 1787 111 

concert effectual means of preserving our country from the 
evils which threaten us. The Virginia deputies (who are 
all here) meet and confer together two or three hours every 
day, in order to form a proper correspondence of sentiments ; 
and for form's sake, to see what new deputies are arrived, 
and to grow into some acquaintance with each other, we 
regularly meet every day at three o'clock. These and some 
occasional conversations with the deputies of different States, 
and with some of the general officers of the late army (who 
are here upon a general meeting of the Cincinnati), are the 
only opportunities I have hitherto had of forming any opin- 
ion upon the great subject of our mission, and consequently, 
a very imperfect and indecisive one. Yet, upon the great 
principles of it, I have reason to hope, there will be greater 
unanimity and less opposition, except from the little States, 
than was at first apprehended. The most prevalent idea in 
the principal States seems to be a total alteration of the 
present federal system, and substituting a great National 
Council or Parliament, consisting of two branches of the 
Legislature, founded upon the principles of equal propor- 
tionate representation, with full legislative powers upon all 
the subjects of the Union ; and an Executive ; and to make 
the several State Legislatures subordinate to the National, 
by giving the latter the power of a negative upon all such 
laws as they shall judge contrary to the interest of the 
Federal Union. It is easy to foresee that there will be much 
difficulty in organizing a government upon this great scale, 
and at the same time reserving to the State Legislatures a 
sufficient portion of power for promoting and securing the 
prosperity and happiness of their respective citizens; yet 
with a proper degree of coolness, liberality, and candor (very 
rare commodities, by the bye), I doubt not but it may be 
effected. There are among a variety some very eccentric 
opinions upon this great subject ; and what is a very extraor- 
dinary phenomenon, we are likely to find the republicans, 
on this occasion, issue from the Southern and Middle States, 
and the anti-republicans from the Eastern ; however extraor- 
dinary this may at first seem, it may, I think, be accounted 
for from a very common and natural impulse of the human 



THE OPENING OF THE CONVENTION 

mind. Men disappointed in expectations too hastily and 
sanguinely formed, tired and disgusted with the unexpected 
evils they have experienced, and anxious to remove them as 
far as possible, are very apt to run into the opposite ex- 
treme ; and the people of the Eastern States, setting out with 
more republican principles, have consequently been more 
disappointed than we have been." 

The early attendance of the Virginia delegation had 
been urged by Madison in a letter to Governor Edmund 
Randolph, April 15, 1787 : 

"I am sorry that punctuality on your part will oblige you 
to travel without the company of Mrs. Randolph. But the 
sacrifice seems to be the more necessary, as Virginia ought 
not only to be on the ground in due time, but to be prepared 
with some materials for the work of the Convention. In 
this view, I could wish that you might be able to reach 
Philadelphia some days before the second Monday in May." 

Accordingly, Madison arrived on May 3 ; Washing- 
ton, May 13 : Wythe, Blair, and McClurg before May 
14 ; Randolph, May 15, and Mason, May 17. This 
delegation being first on the field held daily conferences 
over the plan to be presented. 1 As Madison wrote 
later : 

. . . "When the Convention as recommended at Annapo- 
lis took place at Philadelphia, the deputies from Virginia 
supposed that, as that State had been first in the successive 
steps leading to a revision of the Federal system, some intro- 
ductory propositions might be expected from them. They 
accordingly entered into consultation on the subject and 
having agreed among themselves on the outline of a plan, 
it was laid before the Convention by Mr. Randolph. . . . 

1 See Life and Times of James Madison (1859), by William Cabell Rives, II, 
206, 273: "Judges Wythe and Blair, owing to the 'badness of their cavalry', as 
Governor Randolph wrote to Mr. Madison, were furnished by his orders with a 
'Stateboat' to convey them to the head of Chesapeake Bay and sailed from York- 
town for their destination on the seventh of May. They arrived in Philadelphia, 
as their colleague, Dr. McClurg, did also, in full time for the meeting of the Conven- 
tion, making five of the delegates of Virginia present the first day/' 



SUNDAY, MAY 20, 1787 113 

This project was the basis of its deliberations, and after pass- 
ing through a variety of changes in its important, as well 
as its lesser features, was developed and amended into the 
form finally agreed upon." 

It was a striking fact that Edmund Randolph should 
have been entrusted to propose this Virginia Plan, for 
it favored a much stronger National Government than 
most of the delegates were at first prepared for, and 
Randolph himself had apparently come to the Conven- 
tion with the belief that amendments to the Articles 
of Confederation were all that were necessary. Writ- 
ing to Madison, March 27, 1787, he had said : 

"I have turned my mind somewhat to the business of May 
next, but am hourly interrupted. At present I conceive 
1. That the alterations should be grafted on the old Confed- 
eration. 2. That what is best in itself, not merely what can 
be obtained from the Assemblies, be adopted. 3. That 
the points of power to be granted be so detached from each 
other, as to permit a State to reject one part, without muti- 
lating the whole. With these objects, ought not some gen- 
eral proposition to be prepared for feeling the pulse of the 
Convention on the subject at large ? Ought not an address 
to accompany the new Constitution?" 

Undoubtedly, the conferences of the Virginia dele- 
gates after their arrival in Philadelphia (referred to by 
Mason and Madison) led Randolph to change his 
opinion ; for in his letter to the speaker of the Virginia 
House of Delegates, in the following October, he 
described his conversion : l 

"Before my departure for the Convention, I believed that 
the Confederation was not so eminently defective as it had 
been supposed. But after I had entered into a free com- 
munication with those who were best informed of the condi- 
tion and interest of each State ; after I had compared the 
intelligence derived from them with the properties which 

1 Randolph to the Speaker, Oct. 10, 1787, Elliot* a Debates, I, 482. 



114 THE OPENING OF THE CONVENTION 

ought to characterize the Government of our Union, I 
became persuaded that the Confederation was destitute of 
every energy which a Constitution of the United States 
ought to possess. For the objects proposed by the institu- 
tion were, that it should be a shield against foreign hostility, 
and a firm resort against domestic commotion ; that it should 
cherish trade and promote the prosperity of the States under 
its care. But these are not the attributes of our present 
Union. Several experiences under the pressure of war, a 
ruinous weakness manifested since the return of peace, and 
the contemplation of those dangers which darken the future 
prospect, have condemned the hope of grandeur and safety 
under the auspices of the Confederation." 

MONDAY, MAY 21, 1787 

The Convention met and adjourned ; and Washing- 
ton noted : 

" Delaware State was represented. Dined and drank tea 
at Mr. Bingham's in great splendor." 

The Packet said that: "Various opinions are prop- 
agated respecting the probable results of the Federal 
Convention ; but whatever means are pursued it seems 
to be unanimously agreed that a strong and efficient 
Executive must be somewhere established." l 

George Read of Delaware wrote to his fellow delegate 
from that State, John Dickinson : 

"I have now seen Mr. Bassett, being from my lodgings 
when he called last evening. He stopt at the Indian Queen, 
where Mr. Mason of Virginia stays, the last of their seven 
deputies who came in. We have now a quorum from six 
States to wit, South and North Carolina, Virginia, Delaware, 
Pennsylvania and New York, and single deputies from three 
others Georgia, New Jersey and Massachusetts whose 

1 See also Pennsylvania Gazette, May 23 ; American Herald, May 28, 1787 (and 
other papers), adding : "How widely different would have been the character of the 
Union, if in Congress resided a power to controul the selfish interests of single States 
and to compel the sacrifice of partial views in order to promote the common weal." 



MONDAY, MAY 21, 1787 115 

additional ones are hourly expected, and also the Connecti- 
cut delegates who have been appointed within the last ten 
days by the Legislature there. We have no particular 
accounts from New Hampshire, other than that the dele- 
gates to Congress were appointed deputies to this Conven- 
tion. Maryland, you may probably have heard more cer- 
tain accounts of than we who are here. Rhode Island hath 
made no appointment yet. The gentlemen who came here 
early, particularly Virginia, that had a quorum on the first 
day, express much uneasiness at the backwardness of indi- 
viduals in giving attendance. It is meant to organize the 
body as soon as seven States* quorums attend. I wish you 
were here. I am in possession of a copied draft of a Federal 
system intended to be proposed, if something nearly similar 
shall not precede it. Some of its principal features are taken 
from the New York system of Government. A House of 
Delegates and Senate for a General Legislature, as to the 
great business of the Union. The first of them to be chosen 
by the Legislature of each State, in proportion to its number 
of white inhabitants, and three-fifths of all others, fixing a 
number for sending each representative. The second, to 
wit, the Senate, to be elected by the delegates so returned, 
either from themselves or the people at large, in four great 
districts, into which the United States are to be divided for 
the purpose of forming this Senate from, which, when so 
formed, is to be divided into four classes for the purpose of 
an annual rotation of a fourth of the members. A Presi- 
dent having only Executive powers for seven years. By 
this plan, our State may have a representation in the House 
of Delegates of one member in eighty. I suspect it to be of 
importance to the small States that their deputies should 
keep a strict watch upon the movements and propositions 
from the larger States, who will probably combine to swallow 
up the smaller ones by addition, division, or impoverish- 
ment ; and if you have any wish to assist in guarding against 
such attempts, you will be speedy in your attendance." 

The draft of the Constitution referred to by Read as 
in his possession was undoubtedly the one prepared by 



116 THE OPENING OF THE CONVENTION 

Charles Pinckney of South Carolina, which he was 
about to present to the Convention on May 9. Both 
Pinckney and Madison, as well as Read and Governor 
Randolph, boarded at Mrs. House's ; and the various 
plans for the new Government were early talked over. 
For, as Madison wrote later : 1 

"All who regarded the objects of the Convention to be a 
real and regular Government, as contradistinguished from 
the old Federal system, looked to a division of it into Legis- 
lative, Executive, and Judiciary branches, and of course 
would accommodate their plans to their organization. This 
was the view of the subject generally taken and familiar 
in conversation, when Mr. Pinckney was preparing his plan. 
I lodged in the same house with him, and he was fond of con- 
versing on the subject." 

George Mason wrote to Arthur Lee of Virginia as to 
a similar plan : 

"The most prevalent idea, I think at present, is a total 
change of the Federal system, and instituting a great 
National Council or Parliament upon the principles of equal, 
proportionate representation, consisting of two branches of 
the Legislature invested with full legislative powers upon 
the objects of the Union; and to make the State Legisla- 
tures subordinate to the National by giving to the latter a 
negative upon all such laws as they judge contrary to the 
principles and interest of the Union; to establish also a 
National Executive, and a Judiciary system with cognizance 
of all such matters as depend upon the law of nations, 
and such other objects as the local courts of justice may be 
inadequate to.'* 

The news that New Hampshire was hesitating to 
join in the Convention was so disturbing that several 
delegates now asked General Henry Knox (then in 
Philadelphia attending the meeting of the Society of 
Cincinnati) to urge his friend, General John Sullivan, 

1 Madison to Jared Sparks, Nov. 25, 1831. 



MONDAY, MAY SI, 1787 117 

Governor of New Hampshire, to hasten, if possible, the 
departure of its delegates. 1 Knox wrote, this day, that 
he was impressed with the belief that : 

"We are verging fast to anarchy and that the present 
Convention is the only means of avoiding the most flagi- 
tious evils that ever inflicted three millions of people. . . . 
There are here a number of the most respectable characters 
from several States, among which is our illustrious friend, 
General Washington, who is extremely anxious on the sub- 
ject of the New Hampshire delegates. . . . Endeavor, 
then, my dear Sir, to push this matter with all your powers. 
I am persuaded, from the present complexion of opinions, 
that the issue will prove that you have highly served your 
country in promoting the measure/* 

The living conditions for the delegates in Philadel- 
phia were interestingly described in the letter from 
Read to Dickinson, quoted above : 

"It is rather unlucky that you had not given me a hint 
of your wish to be in a lodging house at an earlier day. Mrs. 
House's, where I am, is very crowded, and the room I am 
presently in so small as not to admit of a second bed. That 
which I had heretofore on my return from New York was 
asked for Governor Randolph, it being then expected he 
would have brought his lady with him, which he did not, 
but she is expected to follow some time hence. I have not 
seen Mr. Bassett, being from my lodgings when he called last 
evening. He stopt at the Indian Queen, where Mr. Mason of 
Virginia stays, the last of the seven deputies who came in." 

And, in a letter to Dickinson, three days later, Read 
said : 2 

1 On June 1, a despatch from Portsmouth, New Hampshire, dated May 19, was 
printed in the Independent Gazetteer: "We are authorized to inform our readers 
:hat the probability of the Honorable delegates from this State not attending the 
Convention in Philadelphia, causes great uneasiness in the minds of the true Whigs 
>f New Hampshire, and will cause a considerable inspection into the state of our 
inances." 

2 Read to Dickinson, May 24, 1787, Book of the Signers (1861), by William 
Brotherhead ; George Mason to George Mason, Jr., May 20, 1787. 

. Trist wrote to Jefferson, June 6, 1787 : " Our family is much enlarged by 



118 THE OPENING OF THE CONVENTION 

"Being told last evening by Governor Randolph of his 
having engaged a couple of rooms in a house at a small dis- 
tance from our present lodgings and that he will move to 
them tomorrow evening, I renewed my application on your 
behalf this morning, and am told that the room here which 
Mr. Randolph leaves, you may have. It is on the first floor, 
up one pair of stairs on 5th Street the same which I used 
theretofore, and you have seen me in. My present lodging 
room is behind it, and there are doors which form a com- 
munication between the two. As Mr. Randolph expects his 
lady, his situation is too confined in this house. He is to 
dine at our table. Since my application on your behalf here 
on Monday last, another has been made for Mr. Gerry who 
is expected daily ; but mine being first, I now have the offer 
for you." 

George Mason of Virginia described conditions, as 
follows : 

" We found travelling very expensive from eight to 
nine dollars per day. In this city, the living is cheap. We 
are at the old Indian Queen in Fourth Street, where we are 
very well accommodated, have a good room to ourselves, 
and are charged only twenty five Pennsylvania currency per 
day, including our servants and horses, exclusive of club in 
liquors and extra charges ; so that I hope I shall be able to 
defray my expenses with my public allowance, and more than 
that, I do not wish." 

TUESDAY, MAY 22, 1787 

The Convention met and adjourned ; and Washing- 
ton noted : 

the meeting of the Convention of the States. Gov. Randolph, Dr. McClurg, 
Mr. Madison and Mr. Beckley all of your State, make a part. Mrs. Randolph 
did not accompany her husband. She has lately presented Mr. Randolph another 
little one, but is now so well recovered as to undertake the journey, and in a short 
time, I hope to have the happiness of seeing her in this City." Jefferson Papers 
AfSS, in Massachusetts Historical Society. Randolph wrote to Lieut. Gov. Beverly 
Randolph, June 6, 1787: "The prospect of a very long sojournment here has 
determined me to bring up my family. They will want about thirty pounds 
(about $106) for the expense of travelling." Calendar of Virginia State Papers, IV. 



WEDNESDAY, MAY 23, 1787 119 

"The representation from No. Carolina was compleated 
and made a representation for five States. [Pennsylvania, 
Virginia, New York, Delaware, North Carolina.] Dined 
and drank tea at Mr. Morris's." 



WEDNESDAY, MAY 23, 1787 

The Convention met and adjourned ; and Washing- 
ton noted : 

"No more States being represented, I rid to Gen'L 
Mifflin's to breakfast. After which, in company with him, 
Mr. Madison, Mr. Rutledge and others, I crossed the Schuyl- 
kill above the Falls, visited Mr. Peter's Mr. Penn's seat, 
and Mr. Wm. Hamilton's (and repaired at the hour of one 
to the State House). Dined at Mr. Chew's with the wed- 
ding guests (Colo. Howard of Baltimore having married his 
daughter, Peggy). Drank tea there in a very large circle 
of ladies." 

James Monroe, this day, wrote from Fredericksburg, 
Virginia, to Madison that "we all look with great 
anxiety to the result of the Convention." 

"Indeed, it seems to be the sole point on which all future 
movements will turn. If it succeeds wisely and of course 
happily, the wishes of all good men will be gratified. The 
arrangements must be wise, and every way well concerted, 
for them to force their way through the States. "The experi- 
ence of the Federal Government hath taught Congress, 
or rather those who have composed it, the sentiments of the 
several States upon the subject of the powers it should pos- 
sess. Yet it may by some be thought doubtful, whether it 
hath not taught them that it will be almost impossible to 
adopt any plan that will have the concurrence of all the 
States ; or if it hath, that will be of any duration afterwards. 
It is, however, the business of every passenger to do what he 
thinks right and to hope that others will act on the same 
principle." 



120 THE OPENING OP THE CONVENTION 
THURSDAY, MAY 24, 1787 

The Convention met and adjourned; and General 
Washington noted : 

"No more States represented. Dined and drank tea at 
Mr. John Ross's. One of my postillion boys (Paris) being 
sick, requested Doctr. Jones to attend him." 

Rufus King, a delegate from Massachusetts, wrote, 
this day, to Jeremiah Wadsworth of Connecticut: 
"I am mortified that I alone am from New England. 
The backwardness may prove unfortunate. Pray 
hurry on your delegates." William Grayson, a Mem- 
ber of Congress from Virginia, then in New York, wrote 
to Madison: "Entre nous. I believe the Eastern 
people have taken ground they will not depart from 
respecting the Convention one Legislature composed 
of a lower house triennially elected, and an Executive 
and Senate for a good number of years. I shall see 
Gerry and Johnson as they pass and may perhaps give 
you a hint." 

FRIDAY, MAY 26, 1787 

IN CONVENTION 

On this day, twelve days after its call, the Convention 
perfected its organization, a quorum of States having 
at last beeji present, through the advent of the South 
Carolina delegation, and of Paterson and William 
Churchill Houston of the New Jersey delegation. 
Robert Morris of Pennsylvania proposed Washington 
for President, and John Rutledge of South Carolina 
seconded the motion, "expressing his confidence that 
the choice would be unanimous, and observing that the 
presence of General Washington forbade any observa- 
tion on the occasion which might otherwise be proper." 
Madison, in his Notes of the Convention proceedings, 
observed that : "The nomination came with particular 



FRIDAY, MAY 25, 1787 

grace from Pennsylvania, as Doctor Franklin alone 
could have been thought of as a competitor. The 
Doctor was himself to have made the nomination of 
General Washington, but the state of the weather and 
his health confined him to his house." Washington 
was unanimously elected, and was conducted to the 
Chair by Morris and Butledge. The Convention pro- 
ceeded to elect as Secretary, Major William Jackson 
(nominated by Alexander Hamilton) against William 
Temple Franklin (nominated by James Wilson). 1 A 
Committee was then appointed to prepare standing 
rules and orders and the Convention adjourned. 
Washington noted in his diary : 

"Another delegate coming in from the State of New Jer- 
sey gave it a representation and encreased the number to 
seven, which forming a quorum of the 13, the members 
present resolved to organize the body; when by a unani- 
mous vote, I was called up to the Chair as President of the 
body, Major William Jackson was appointed Secretary and 
a committee was chosen consisting of (Mr. Wythe, Mr. 
Hamilton, and Mr. Charles Pinckney chosen) 3 members 
to prepare rules and regulations for conducting the business. 
And after appointing doorkeepers the Convention adjourned 
till Monday (10 o'clock) to give time to the Committee to 
report the matters referred to them. 

Returned many visits (in the forenoon) today. Dined at 
Mr. Thomas Willing's, and spent the evening at my lodgings." 

Of Washington's address to the Convention, Madison 
noted that he "thanked the Convention for the honor 
they had conferred upon him, reminded them of the 

1 Major Jackson, who was chosen Secretary, had been formerly Assistant Secre- 
tary of War. George Mason wrote, May 26, to Arthur Lee, who urged Jackson : 
" I have received your favor by Major Jackson. Nothing that I have heard has 
yet been mentioned upon the subject among the deputies here, though I understand 
there are several candidates, which I am surprised at, as the office will be of so short 
duration, and merely honorary, or possibly introductory to something substantial." 
The letter is of interest as showing Mason's opinion that the Convention would not 
be long in session. It appears that John Beckley, Clerk of the Virginia House of 
Delegates, was also a candidate. 



THE OPENING OF THE CONVENTION 

novelty of the scene of business in which he was to act, 
lamented his want of better qualifications, and claimed 
the indulgence of the House towards the involuntary 
errors which his inexperience might occasion." Robert 
Yates of New York who also took notes of the debates 
reported that: "When seated, he (General Washing- 
ton) declared that as he never had been in such a 
situation, he felt himself embarrassed, that he hoped 
his errors, as they would be unintentional, would be 
excused." It is interesting to compare this modest 
speech with the equally deprecatory address made by 
Washington, twelve years before, in accepting the 
appointment as Cornmander-in-Chief of the Continental 
Army by the Continental Congress, June 16, 1775, 
when he concluded his speech of acceptance by saying : 
"But lest some unhappy event should happen unfa- 
vorable to my reputation, I beg it may be remembered 
by every gentleman in the room that I, this day, declare 
with the utmost sincerity that I do not think myself 
equal to the command I am honored with." * 

It is to be remarked that Washington took no part in 
the discussions on the floor of the Convention, until the 
very last day, September 17. After the Committee of 
the Whole made its report on June 13, he was almost 
continually in the chair as presiding officer. Madison's 
Notes show, however, that he followed the discussions 
keenly, and his vote was recorded five times, when the 
Virginia delegation, without it, would have been evenly 
divided. 2 Like Franklin, he adopted an attitude of 
conciliation and a willingness to forego his own views 
on a particular subject if by so doing he would accom- 

1 Washington wrote to Gen. Henry Knox, May 31, 1787 : "I was much against 
my wish placed in the chair." 

9 June 4, on the question for a single Executive ; July 26, on the Resolution con- 
stituting the Executive ; August 13, on the question of the right of the House to 
originate money bills ; August 21, on the prohibition to tax exports ; August 24, 
on the export tax ; September 12, on the President's veto. 



FRIDAY, MAY 25, 1787 123 

plish a larger end ; and his influence was profound in 
the meetings of the delegates, at which their problems 
were discussed outside the Convention. 

The Herald, May 30, described the organization of 
the Convention as follows ; and its opinion that the 
work before it would be an "easy task" may be noted 
as a singularly poor prophecy : * 

"On Friday last, the members of the Federal Convention 
chose his Excellency George Washington for their President 
and Mr. William Jackson for their secretary. It is said that 
the first step towards discharging the important duties of 
this National Council will be the appointment of a delegate 
from each State as a committee to receive communications 
from the other members and to arrange, digest and report 
a system for the subsequent discussion of the whole body. 
This plan is admirably adapted for the despatch of business 
as it cuts off a field for long and desultory debates upon first 
principles, and by collecting materials from every quarter 
to form a solid and comprehensive foundation leaves little 
besides the easy task of raising and adorning the superstruc- 
ture to the collective labour of a popular assembly. When, 
indeed, we consider the critical situation of the country, the 
anxiety with which every good citizen regards this dernier 
resorte and the decisive effect it must have upon the peace 
and prosperity of America, though everything should cer- 
tainly be given to prudence and deliberation, not a moment 
can be spared to useless forms or unprofitable controversy." 

George Read of Delaware wrote to his co-delegate, 
John Dickinson, urging him to come on, Sunday eve- 
ning : 

1 Reprinted in New Hampshire Spy, June 9; Salem (Mass.) Mercury, June 12; 
Connecticut C our ant, June 13 ; Independent Chronicle (Boston), June 14 ; Virginia 
Independent Chronicle, June 13, 1787 ; and in many other newspapers. 

The Gazetteer said, May 26: "Yesterday at the State House in this city seven 
States were fully represented in Convention. These forming a quorum, they pro- 
ceeded to the choice of a President and his Excellency General Washington was 
unanimously elected to that important station." The Packet said, May 26 : "Yes- 
terday, a sufficient number of the Members of the Convention having met, they pro- 
ceeded to business, when his Excellency George Washington, Esq., was chosen 
President." 



124 THE OPENING OF THE CONVENTION 

"We make our quorum today. Two additional South 
Carolina delegates came in Allibone's Packet yesterday, and 
at New York, making four in the whole but one from 
Maryland, yesterday none as yet from Connecticut, 
New Hampshire or Rhode Island, tho the first of these three 
are hourly expected. You should be here at the first open- 
ing of the Budget. ..." 

It is to be noted that on this organization of the 
Convention, there were four States from the South with 
nineteen delegates present, and three from the North, 
with ten delegates. Massachusetts, Connecticut, and 
Maryland were first represented on the floor on May 28 ; 
Georgia, on May 31 ; New Hampshire, on July 23 ; and 
Rhode Island never appointed any delegates. 

The States were represented by varying numbers of 
delegates. Thus, to constitute a quorum to represent 
it, Pennsylvania required four of its seven delegates; 
Delaware, three of its five ; Virginia, three of its seven ; 
North Carolina, three of its five ; New Jersey, three of 
its five ; Massachusetts, three of its four ; South 
Carolina, two of its four; Georgia, two of its four; 
New Hampshire, two of its four ; New York, two of its 
three ; Maryland allowed one of its five to represent it ; 
and Connecticut, one of its three. The result was that 
twenty-nine members present and acting might bind 
their States, when all twelve States were on the floor. 
There were never more than eleven States represented 
at any one time. 1 And as the average attendance was 
little more than thirty (owing to members who were 
absent or who returned home from time to time) the 
Convention resembled a large Committee. 2 Moreover, 

1 Massachusetts was absent from Convention on votes on five days (Aug. 22, 24, 
27, Sept. 6, 12) ; New Jersey, on three days (July 31, Aug. 27, 28) ; Pennsylvania, 
on two days (June SO, Aug. 24) ; Delaware, on one day (June 30) ; North Caro- 
lina, on two days (Aug. 24, 27) ; Georgia, on two days (June 30, Aug. 27) ; New 
York after July 10. 

2 From May 28 to June 2, the hour of meeting of the Convention was 10 A.M. ; 



FRIDAY, MAY 25, 1787 125 

since a State delegation was often equally divided in 
opinion and hence not counted on either side upon a 
vote, a motion might prevail, as it frequently did, by 
less than a majority of the States on the floor. 1 

The most frequent speakers during the debates were 
G. Morris with 173 speeches ; Wilson, 168 ; Madison, 
161; Sherman, 138; Mason, 136; Gerry, 119, 2 Six 
of the delegates never made a speech during the Con- 
vention, prior to the last day (so far as appears from 
Madison's Notes) Richard Bassett of Delaware, John 
Blair of Virginia, William Few of Georgia, Joseph 
Gilman of New Hampshire, Jared Ingersoll of Penn- 
sylvania, and William Blount of North Carolina. It 
is interesting to note that, of the fifty-five delegates 
who attended at some time during the Convention, 
thirty-eight served on one or more of the Committees 
appointed to report on the various propositions de- 
bated. 3 

The chief source of information as to the debates in 
the Convention, as is well known, is the record kept by 
James Madison, which was interestingly described by 

from June 4 to Aug. 18, it was 11 A.M., but without specified hour of adjournment. 
Prom Aug. 18 to Aug. 24, by special vote, the Convention sat each day from 10 A.M. 
to 4 F.M. After August 24, the hours were from 10 A.M. to 3 P.M. Washington in 
his diary speaks of "not less than five, for a large part of the time, six, and some- 
times seven hours, sitting every day." 

1 On one hundred twenty-two motions, the votes of one or more of the States 
were evenly divided as follows : New Hampshire, on eleven motions ; Massachu- 
setts, fifteen ; Connecticut, eight ; New York, eight ; New Jersey, one ; Pennsyl- 
vania, twelve; Delaware, ten; Maryland, twenty-seven; Virginia, one; North 
Carolina, thirteen ; South Carolina, four ; Georgia, twelve. There were twenty- 
three occasions when, had there been no divided vote, the result of the vote might 
have been altered. 

2 History of the People of the United States, by John Bach McMaster, I, 421 note. 
8 Of the signers of the Constitution, Jacob Broom and Jonathan Dayton of New 

Jersey, Thomas Mifflin, Robert Morris, and Jared Ingersoll of Pennsylvania, Rich- 
ard Bassett of Delaware, Daniel of St. Thomas Jenifer of Maryland, William Blount 
and Richard D. Spaight of North Carolina, and Washington, served on no Com- 
mittee. Of the delegates who had left the Convention prior to the signing, the 
following had served on no Committee: Caleb Strong of Massachusetts; John 
Lansing of New York; William C. Houston of New Jersey; John F. Mercer of 
Maryland; James McClurg of Virginia ; William Houstoun and William Pierce 
of Georgia. 



126 THE OPENING OF THE CONVENTION 

him in a memorandum shortly before his death in 1836, 
in which he said : 1 

"The curiosity I had felt during my researches into the 
history of the most distinguished Confederacies, particularly 
those of antiquity, and the deficiency I found in the means of 
satisfying it, more especially in what related to the process, 
the principles, the reasons, and the anticipations, which pre- 
vailed in the formation of them, determined me to preserve 
as far as I could an exact account of what might pass in the 
Convention, whilst executing its trust, with the magnitude 
of which I was duly impressed, as I was with the gratifica- 
tion promised to future curiosity by an authentic exhibition 
of the objects, the opinions, and the reasonings from which 
the new system of government was to receive its peculiar 
structure and organization. Nor was I unaware of the value 
of such a contribution to the fund of materials for the history 
of a Constitution on which would be staked the happiness of 
a people great even in its infancy, and possibly the cause of 
liberty throughout the world. In pursuance of the task I 
had assumed, I chose a seat in front of the presiding member, 
with the other members on my right and left hands. In 
this favorable position for hearing all that passed I noted, in 
terms legible and in abbreviations and marks intelligible to 
myself, what was read from the Chair or spoken by the mem- 
bers; and losing not a moment unnecessarily between the 
adjournment and reassembling of the Convention, I was 
enabled to write out my daily notes during the session or 
within a few finishing days after its close. ... In the 
labour and correctness of doing this, I was not a little aided 
by practice and by a familiarity with the style and the train 
of observation and reasoning which characterized the prin- 
cipal speakers. It happened also that I was not absent a 
single day, nor more than a casual fraction of an hour in any 
day, so that I could not have lost a single speech, unless a 
very short one. ... Of the ability and intelligence of those 
who composed the Convention, the debates and proceed- 

1 Preface to Debates in the Convention. A Sketch Never Finished nor Applied, by 
James Madison. 



SUNDAY, MAY 27, 1787 

ings may be a test ; as the character of the work which was 
the offspring of their deliberations must be tested by the 
experience of the future, added to that of the nearly half 
century which has passed." 

Madison's Notes were not published until the year 
1840, and up to that date the chief information as to the 
Constitution came from notes kept by Robert Yates of 
New York (between May 25 and July 10, 1787), which 
were published in 1822. The minutes for the official 
Journal, never reduced to formal shape by the Secre- 
tary, William Jackson, were published for the first time, 
in 1819, by the Department of State. Since 1894, scat- 
tered notes by other delegates Rufus King, James 
McHenry, William Paterson, Alexander Hamilton, and 
William Pierce have come to light and have been pub- 
lished. 1 It is from these sources that our knowledge 
of the formation of the Constitution is derived. 

SATURDAY, MAY 26, 1787 

The Convention did not sit this day ; and Washing- 
ton noted : 

"Returned all my visits this forenoon (where I could get 
an account of the lodgings of those to whom I was indebted 
for them), dined with a club at the City Tavern, and spent 
the evening at my quarters writing letters." 

SUNDAY, MAY 27, 1787 

In view of the provisions for freedom of religion 
which were to be embodied in the Constitution, the 

1 See Part Three, Chapter Two, infra. Max Farrand states in his Records of the 
Federal Convention that notes were kept also by Charles Pinckney, George Mason, 
Elbridge Gerry, and by another delegate (referred to by Wilson and by G. Morris). 

Gouverneur Morris wrote to Timothy Pickering, Dec. 22, 1814: "While I sat 
in the Convention, my mind was too much occupied by the interests of our Country, 
to keep notes of what we had done. Some gentlemen, I was told, passed their eve- 
nings in transcribing speeches from shorthand minutes of the day. They can speak 
positively on matters of which I have little recollection. My facilities were on the 
stretch to forward the business, remove the impediments, obviate objections and 
reconcile jarring opinions." Piekering Papers MSS., in Mcuts. Hia1. Soc. t XXX, 
888. See also Life of Gouverneuv Morris (1832), by Jared Sparks, I, 282. 



128 THE OPENING OF THE CONVENTION 

following entry in Washington's diary is of interest: 
"Went to the Romish Church to high mass/' 1 The 
newspapers stated that Washington accompanied by a 
number of respectable members of the protestant and 
dissenting churches attended divine service at the 
Catholick Chapel. " The anthems and other solemn 
pieces of music performed on this occasion were admi- 
rably adapted to diffuse a spirit of devotion through- 
out a crowded congregation and to give effect to an 
excellent sermon delivered by the Rev. Mr. Beeston." 2 
On the previous Sunday, the rest of the Virginia delega- 
tion had attended a similar service, as described by 
George Mason in a letter to his son: 3 "The Gover- 
nor of Virginia, with all the Virginia delegates, except 
the General, attended the Roman Catholick Chapel 
today, more out of compliment than religion, and 
more out of curiosity than compliment. There was a 
numerous congregation ; but an indifferent preacher, I 
believe a foreigner. The composition of his sermon 
was loose and trivial, his delivery and pronuncia- 
tion ungraceful and faulty. Altho I have been in a 
Roman Catholic Chapel before, I was struck with the 
solemnity of the apparatus and could not help remark- 
ing how much everything was calculated to warm the 
imagination and captivate the senses. No wonder that 
this should be the popular religion of Europe ! The 
church music was exceedingly fine, but while I was 
pleased with the air of solemnity so generally diffused 
thro the Church, I was somewhat disgusted with the 
frequent tinckling of a little bell; which put me in 
mind of the drawing up the curtain for a puppet show. 

1 St. Mary's Church, on Fourth Street, above Spruce. 

2 Reprinted in Massachusetts Centinel, June 9 ; New Hampshire Spy, June 12, 
1787, and in papers in other States. 

8 George Mason to George Mason, Jr., May 20, 1787. Although this letter has 
been printed by Bancroft, Farrand, and others, the portion above quoted has 
hitherto been omitted. See original letter in Library of Congress. 



SUNDAY, MAY 27, 1787 

I wonder they have not substituted some more solemn 
and deep toned instrument." Mason wrote again to 
his son, this day stating that he was already tired of the 
social life in Philadelphia: "It is impossible to judge 
how long we shall be detained here, but from present 
appearance I fear until July, if not later. I begin to 
grow heartily tired of the etiquette and nonsense so 
fashionable in this city. It would take me some months 
to make myself master of them, and that it should 
require months to learn what is not worth remembering 
as many minutes, is to me so discouraging a circum- 
stance as determines me to give myself no manner of 
trouble about them." 

Madison wrote to James Madison, Sr., this day, that : 
"We have been here for some time, suffering and duly 
disappointed from the failure of the deputies to 
assemble. ... It is impossible to form a judgment of 
the result of this experiment. Every reflecting man 
becomes daily more alarmed at our situation. The 
unwise and wicked proceedings of the Government of 
some States and the unruly temper of the people of 
others must, if persevered in, soon produce some new 
scenes among us." To Edmund Pendleton of Virginia, 
Madison wrote that: "A few days will now furnish 
some data in calculating the probable result of the 
meeting. In general, the members seem to accord in 
viewing our situation as peculiarly critical and in being 
averse to temporising expedients. I wish they may as 
readily agree when particulars are brought forward." 

Edmund Randolph wrote to Lieutenant Governor 
Beverly Randolph: 1 "Seven States met on Friday, 
appointed a committee to prepare rules and adjourned 
till Monday. In four or five days we shall probably 
have every State represented, except Rhode Island, 
which has peremptorily refused to appoint deputies, 

1 Calendar of Virginia State Papers, IV, 490. 



130 THE OPENING OF THE CONVENTION 

and New Hampshire, of which we can hear nothing 
certain but her friendly temper towards the Union. 
I ought, however, to add, that a respectable minority in 
Rhode Island are solicitous that their State should 
participate in the Convention." 

MONDAY, MAY 28, 1787 

IN CONVENTION 

On this day, more delegates appeared on the floor of 
the Convention Nathaniel Gorham and Caleb 
Strong from Massachusetts ; Oliver Ellsworth from 
Connecticut; Gunning Bedford from Delaware; and 
James McHenry from Maryland. Benjamin Franklin, 
George Clymer, Thomas Mifflin, and Jared Ingersoll 
from Pennsylvania, who were not present on May 25, 
also took their seats. 

The Committee consisting of George Wythe, Alex- 
ander Hamilton, and Charles Pinckney reported the 
"Rules to be Observed as the Standing Orders of the 
Convention", which were adopted. The most mo- 
mentous of these was that seven States should be a 
quorum, and that "all questions should be decided by 
a majority of the States which shall be fully repre- 
sented." As to this rule, Madison's note is instructive 
for its disclosure that, even before the Convention met, 
a division between the large and the small States had 
arisen the division which later nearly wrecked the 
Convention : 

"Previous to the arrival of a majority of the States, the 
rule by which they ought to vote in the Convention had been 
made a subject of conversation among the members present. 
It was pressed by Gouverneur Morris and favored by Rob- 
ert Morris and others from Pennsylvania, that the large 
States should unite in firmly refusing to the small States an 
equal vote, as unreasonable, and as enabling the small States 



MONDAY, MAY 28, 1787 131 

to negative every good system of Government, which must, 
in the nature of things, be founded on a violation of that 
equality. The members from Virginia, conceiving that such 
an attempt might beget fatal altercations between the large 
and small States, and that it would be easier to prevail on 
the latter, in the course of the deliberations, to give up their 
equality for the sake of an effective Government, than on 
taking the field of discussion to disarm themselves of the 
right and thereby throw themselves on the mercy of the large 
States, discountenanced and stifled the project." 

A very necessary addition to the rules was suggested 
by Richard Dobbs Spaight of North Carolina, "to 
provide that, on the one hand, the house may not be pre- 
cluded by a vote upon any question from revising the 
subject matter of it, when they see cause ; nor, on the 
other hand, be led too hastily to rescind a decision 
which was the result of mature discussion." The vital 
importance of this proposal may be seen when one notes 
the numerous instances during the progress of the 
Convention, when propositions decided upon and votes 
taken were rescinded and changed, as men's views 
altered and modified. Another important addition 
was suggested by Pierce Butler of South Carolina, 
" that the House provide . . . against licentious publi- 
cations of their proceedings." 

At the end of this day, a letter was received (and 
placed on file) from citizens of Rhode Island, deploring 
the failure of that State to send delegates to the Con- 
vention, owing to the nonconcurrence of the upper 
House of the Legislature with the vote of the lower 
House. They stated that they believed that "the well 
informed throughout the State" were in favor of giving 
to Congress full power over commerce: and they 
expressed the hope that the absence of Rhode Island 
would not result in action unfavorable to the "com- 
mercial interest" of that State, and that the Con- 



132 THE OPENING OF THE CONVENTION 

vention would make such provisions "as have a 
tendency to strengthen the Union, promote commerce, 
increase the power, and establish the credit of the 
United States." It was natural that there should be 
apprehensions lest Rhode Island's interests might 
suffer at the hands of the delegates ; for there had been 
much resentment throughout the country at the atti- 
tude of that State, by reason of its refusal to grant to 
Congress power over imports and of its iniquitous 
paper money legislation. At the beginning of this very 
month of May, the following letter had appeared in a 
Boston newspaper (widely copied) from "a gentleman 
in the Southern States to his friend in Newport", 
saying : 1 

"The distracted state you are in is sufficient to wean and 
drive every good citizen from his native country. Matters 
have come to such an alarming crisis that the Confederation 
must take notice of you, and it seems the opinion of many 
here that when the Convention meets in Philadelphia, meas- 
ures will be taken to reduce you to order and good govern- 

1 American Herald, May 7, 1787; Massachusetts Centinel, April 4, 1787; Rhode 
Island was frequently referred to in the newspapers as "Rogue Island." See New 
York Morning Pout, April 26, 1787, "The Chronicles of Rogue Island," Chap. I, 
by Chronologist ; New York Daily Advertiser, April 9, 1787, as to a letter from the 
delegates in Congress from Rhode Island to the Governor complaining of publica- 
tion in the Advertiser of "Quintessence of Villainy or Proceedings of the Legislature 
of Rhode Island." For Rhode Island items, see Pennsylvania Journal, April 18, 
May 2; Freeman's Journal, April 4, 18; Pennsylvania Gazette, April 4, 18, 1787. 
James M. Varnum wrote to Washington from Rhode Island, June 18, 1787: 
" Permit me, sir, to observe that the measures of our present Legislature do not 
exhibit the real character of the State. They are equally reprobated and abhorred 
by gentlemen of the learned professions, by the whole mercantile body, and by most 
of the respectable farmers and mechanicks. The majority of the Administration is 
composed of a licentious number of men, destitute of education, and many of them 
void of principle. From anarchy and confusion, they derive their temporary con- 
sequence. . . . With these are associated the disaffected of every description, par- 
ticularly those who were unfriendly during the war. Their paper money system, 
founded in oppression and fraud, they are determined to support at every hazard." 
Washington Papers MSS in Library of Congress. David Daggett of Connecticut, 
in an oration at New Haven, July 4, 1787, said : " Rhode Island has acted a part 
which would cause the savages of the wilderness to blush. Fraud and injustice 
there stalk openly. . . . That little State is an unruly member of the political 
body, and is a reproach and byeword among all her acquaintances.'* 



MONDAY, MAY 28, 1787 133 

ment, or strike your State out of the Union, and annex you 
to others ; for as your Legislature now conducts, they are 
dangerous to the community at large and ruinous to every 
honest and respectable character in the State ; the clamor 
is loud against your State and will daily increase." 

And a writer in another Boston paper said that 
Rhode Island had refused to coftperate in the Con- 
vention but that "from an antifederal disposition, 
nothing better could have been expected" : 

"To that State, it is owing that the Continental impost 
has not taken place ; to her may be charged the poverty of 
the soldiers of the late army ; the heavy taxes of our citizens, 
and the embarrassed state of the public funds. It is pre- 
sumed, however, that her dissent will nevermore be per- 
mitted to defeat any federal measure ; rather let her be 
dropped out of the Union, or apportioned to the different 
States which surround her, nor will the American constella- 
tion lose one gem thereby. The State of Vermont shines 
with far superior lustre and would much more than com- 
pensate the loss." 

OUT OF CONVENTION 
Washington noted : 

"Met in Convention at 10 o'clock. Two States more, 
viz. Massachusetts and Connecticut (made nine on the floor) 
were on the floor today. 

Established Rules agreeably to the plan brought in by the 
Committee for the government of the Convention and 
adjourned (about o'clock). No communications without 
doors. 

Dined at home and drank tea in a large circle at [Tench] 
Francis's." 



CHAPTER TWO 

THE NATIONAL LEGISLATURE 

May 29 ... The Secrecy Rule The Randolph Resolu- 
tions 

May 30 . . .A National Government 

May 31 . . .A Legislature in Two Branches Election 
by the People Legislative Powers 
Negative on State Laws Use of Force 

TUESDAY, MAY 29, 1787 

IN CONVENTION 

Two further members appeared on this day John 
Dickinson of Delaware and Elbridge Gerry of Mas- 
sachusetts. Two important new rules were adopted. 
One, following Spaight's suggestion, was as follows : 

"That a motion to reconsider a matter which has been 
determined by a majority, may be made with leave unani- 
mously given, on the same day on which the vote passed ; 
but otherwise not without one day's previous notice, in which 
last case, if the House agree to the reconsideration, some 
future day shall be assigned for that purpose." 

The other, of vast consequence, was the Secrecy Rule : 

"That no copy be taken of any entry on the journal dur- 
ing the sitting of the House, without leave of the House. 
. . . That nothing spoken in the House be printed, or 
otherwise published or communicated without leave." 

As to the value and necessity of this latter rule, most 
of the delegates, so far as appears, were in absolute 
accord. George Mason had written to his son, May 27, 



TUESDAY, MAY 29, 1787 135 

two days before the rule was adopted that: "It is 
expected our doors will be shut, and communications 
upon the business of the Convention be forbidden 
during its sitting. This, I think, myself, a proper 
precaution to prevent mistakes and misrepresentation 
until the business shall have been completed, when the 
whole may have a very different complexion from that 
in which the several crude and indigested parts might, in 
their first shape, appear if submitted to the public eye." l 
James Madison wrote to Jefferson that: "It was 
thought expedient, in order to secure unbiassed dis- 
cussion within doors and to prevent misconceptions 
and misconstructions without, to establish some rules 
of caution, which will for no short time restrain even 
a confidential communication of our proceeding." To 
James Monroe, he wrote: "One of the earliest rules 
of the Convention restrained the members from any 
disclosure whatever of its proceedings, a restraint which 
will not probably be removed for some time. I think 
the rule was a prudent one, not only as it will effec- 
tually secure the requisite freedom of discussion, but 
as it will save both the Convention and the community 
from a thousand erroneous and perhaps mischievous 
reports." To Jefferson, Madison wrote again that 
"the public mind is very impatient for the event, and 
various reports are circulating which tend to inflame 
curiosity. I do not learn, however, that any discontent 
is expressed at the concealment." 2 Many years later, 
the reason for the rule was stated by Madison in the 
course of a visit paid to him by Jared Sparks, in 1830 : 
"Opinions were so various and at first so crude that it 

1 On June 1, Mason wrote to his son that : " All communications of the proceed- 
ings are forbidden during the sitting of the Convention. This, I think, was a neces- 
sary precaution to prevent misrepresentations or mistakes, there being a material 
difference between the appearance of a subject in its first crude and indigested 
shape, and after it shall have been properly matured and arranged/' 

2 Madison to Jefferson, June 6, July IS, 1787 ; Madison to Monroe, June 10, 
1787. 



136 THE NATIONAL LEGISLATURE 

was necessary they should be long debated before any 
uniform system of opinion could be formed. Mean- 
time, the minds of the members were changing and 
much was to be gained by a yielding and accommodat- 
ing spirit. Had the members committed themselves 
publicly at first, they would have afterwards supposed 
consistency required them to maintain their ground, 
whereas by secret discussion, no man felt himself 
obliged to retain his opinions any longer than he was 
satisfied of their propriety and truth and was open to 
argument." And added Sparks : " Mr. Madison thinks 
110 Constitution would ever have been adopted by the 
Convention, if the debates had been public.'" l Alexan- 
der Martin, a delegate from North Carolina, wrote to 
Governor Caswell that: "This caution was thought 
prudent, lest unfavourable representations might be 
made by imprudent printers of the many crude matters 
and things daily uttered and produced in this body, 
which are unavoidable and which in their unfinished 
state might make an undue impression on the 
too credulous and unthinking mobility." Alexander 
Hamilton wrote later : 2 

"It is a matter generally understood, that the delibera- 
tions of the Convention, which were carried on in private, 

1 Life and Writings of Jared Sparky (1893) by Herbert B. Adams, I, 560, Journal 
entry of April 10, 1830. Jared Sparks himself, writing in the North American Review, 
XXV, 251, in 1827, before the above interview which he had with Madison, and 
before the publication of Madison's Notes of Debates, expressed a contrary view of 
the Secrecy Rule : "On many accounts, it is deeply to be regretted that the debates 
of the grand Convention at Philadelphia have not been preserved. The advantage 
which might have been derived from the arguments of the members were then lost 
to the public. The Journal of Proceedings, as recently published, is meagre beyond 
description, and hardly fills a blank in history. Yates' volume of the proceedings 
and debates of the Convention, together with Luther Martin's speech, supplies the 
deficiency but very imperfectly. Those gentlemen were warm opposers of the Con- 
stitution and wrote and spoke as partisans. The expediency of a secret session 
of that body is more than problematical at this day. . . . Had the deliberations 
been public and reported daily in the newspapers, we apprehend no evil, but much 
good, would have resulted." 

2 Works of Alexander Hamilton (Lodge's ed.), VII, letter of " Amicus" in Gazette 
of ike United States, Sept. 11, 1792. 



TUESDAY, MAY 29, 1787 137 

were to remain undisturbed and every prudent man must 
be convinced of the propriety both of the one and the other. 
Had the deliberations been open while going on, the clamors 
of faction would have prevented any satisfactory result; 
had they been afterwards disclosed, much food would have 
been afforded to inflammatory declamation. Propositions 
made without due reflection, and perhaps abandoned by the 
proposers themselves on more mature reflection, would have 
been handles for a profusion of ill-natured accusation. 
Every infallible declaimer, taking his own ideas as the per- 
fect standard, would have railed without measure or mercy 
at every member of the Convention who had gone a single 
line beyond his standard." 

Edmund Carrington, a Member of Congress from 
Virginia, wrote to Madison, June 13, from New York, as 
to the propriety of the prohibition : " Having matured 
your opinions and given them a collective form, they 
will be fairly presented to the public and stand their 
own advocates ; but caught by detachments and while 
indeed immature, they would be actually the victims 
of ignorance and misrepresentations." 

On the other hand, Jefferson, who was in Paris, and 
who could not understand the difficulties of the situ- 
ation in the Convention, wrote to Adams in London 
(August 30), strongly attacking this rule and saying: 
"I am sorry they began their deliberations by so 
abominable a precedent as that of tying up the tongues 
of their members. Nothing can justify this example 
but the innocence of their intentions, and ignorance of 
the value of public discussions." And Luther Martin, 
who throughout the Convention was opposed to the 
whole plan of the Constitution, wrote, in January, 1788, 
to the Maryland Legislature, the following criticism of 
the Secrecy Rule : l 

1 The Genuine Information, delivered to the Legislature of the State of Maryland, 
Jan. 7, 1788, by Luther Martin, Elliot' a Debates, I, 344. 

Patrick Henry in the Virginia State Convention in 1788 said : " I believe it would 



138 THE NATIONAL LEGISLATURE 

"So far did this rule extend that we were thereby pre- 
vented from corresponding with gentlemen in the different 
States upon the subjects under our discussion a circum- 
stance, sir, which I confess I greatly regretted. I had no 
idea that all the wisdom, integrity and virtue of this State, 
or of the others, were centred in the Convention. I wished 
to have corresponded freely and confidentially with eminent 
characters in my own and other States not implicitly to 
be dictated to by them, but to give their sentiments due 
weight and consideration. So extremely solicitous were 
they that their proceedings should not transpire, that their 
members were prohibited even from taking copies of resolu- 
tions on which the Convention were deliberating, or extracts 
of any kind from the Journals, without formally moving for, 
and obtaining permission, by a vote of the Convention for 
that purpose.'* 

The newspapers during the progress of the Con- 
vention made frequent comment on the secrecy of the 
proceedings. "Such circumspection and secrecy mark 
the proceedings . . . that the members find it difficult 
to acquire the habits of communication even among 
themselves, and are so cautious in defeating the curios- 
ity of the public that all debate is suspended on the 
entrance of their own officers. . . . The anxiety of 
the people must be necessarily increased by every 
appearance of mystery in conducting this important 
business." So wrote the press in June. 1 The New 
York papers, in August, said that: "The profound 
secrecy hitherto observed by the Convention, we can- 
not help considering as a happy omen, as it demon- 
strates that the spirit of party on any great and essential 
point cannot have arisen to any height." 2 At the 
conclusion of the Convention, the press wrote of "the 

have given more general satisfaction if the proceedings of the Convention had not 
been concealed from the public eye." Elliot's Debates, II, 171. 

1 See New York Journal, June 7 ; Boston Gazette, June 11 ; Virginia Independent 
Chronicle, June 20, 1787. 

2 New York Daily Advertiser, Aug. 14, 1787; Pennsylvania Packet, Aug. 22, 1787. 



TUESDAY, MAY 29, 1787 139 

profound secrecy being observed by the members who 
composed it, which at least has done honor to their 
fidelity, as we believe that scarcely another example can 
be advanced of the same caution among so large a 
number of persons." l 

The strictness with which the Convention observed 
the Secrecy Rule is shown by an anecdote related by 
Major William Pierce, a delegate from Georgia. 
"Early in the sessions, one of the delegates dropped a 
copy of the propositions which were before the Conven- 
tion for consideration, and it was picked up by another 
of the delegates and handed to General Washington. 
After the debates of the day were over, just before put- 
ting the question of adjournment, Washington arose 
from his seat and reprimanded the member for his 
carelessness. 'I must entreat gentlemen to be more 
careful, lest our transactions get into the newspapers, 
and disturb the public repose by premature speculations. 
I know not whose paper it is, but there it is (throwing 
it down on the table), let him who owns it take it.' At 
the same time, he bowed, picked up his hat, and quitted 
the room with a dignity so severe that every person 
seemed alarmed. ... It is something remarkable 
that no person ever owned the paper." 

Having settled upon its rules of proceeding, the 
Convention was ready for business. Thereupon, 
Governor Edmund Randolph of Virginia arose. It 
was natural that the first move should come from 
Virginia ; for it was Virginia which first submitted in 
the Continental Congress of 1776 the motion which led 
to the Declaration of Independence; it was Virginia 
which first suggested the Annapolis Convention of 1786 ; 
and it was Virginia which had first elected delegates to 
this Convention. In opening the business before them, 
Randolph "expressed his regret that it should fall to 

1 See Pennsylvania Journal, Oct. 6. 1787. 



140 THE NATIONAL LEGISLATURE 

him rather than those who were of longer standing in 
life and political experience to open the great subject of 
their mission; but as the Convention had originated 
from Virginia, and his colleagues supposed that some 
proposition was expected from them, they had imposed 
this task on him." He then described the defects of 
the existing Confederation. "The framers of it," said 
he, "were wise and great men ; but human rights were 
the chief knowledge of the times when it was framed so 
far as they applied to oppose Great Britain. Requisi- 
tions for men and money had never offered their form 
to our Assemblies. None of these vices that have since 
discovered themselves were apprehended. Its defects, 
therefore, (are) no reflexion on its contrivers." l He 
then set forth his ideas as to the remedy for the existing 
evils, and submitted a Plan for a new Government, 
embodied in fifteen resolutions. 2 And he concluded 
"with an exhortation not to suffer the present oppor- 
tunity of establishing peace, harmony, happiness and 
liberty in the United States to pass away unimproved." 
The genesis of this Plan (probably drafted by Madi- 
son) was described by Madison in a letter written 
towards the end of his life, as follows : 3 

1 As reported in James McHenry's Notes of Debates, but not in Madison's. 

2 J. F. Jameson in Studies in the History of the Federal Convention of 1787 in Amer. 
Hist. Ass. Report (1902), 1, 103, was the first historian to point out that "there exist 
four different texts of these Randolph resolutions, and what is more remarkable, it 
can (in the view of the present writer) be proved that no one of the four is the exact 
text of the original series which Governor Randolph laid before the Convention. 
. . . The original text in Randolph's handwriting, if such there were, is nowhere 
said now to exist." These four texts are (1) that which Madison gives (printed in 
the Documentary History of the Constitution and in Hunt's Writings of James Madi- 
son, III, and in Gilpin's The Madison Papers, and in Elliot's Debates, V) ; (2) that 
printed with the official Journal of the Convention in 1819 under authority of the 
Secretary of State, and in Yates* Secret Proceedings and Debates; (3) that derived 
from manuscript deposited with the Department of State by Gen. Joseph Bloom- 
field, executor of David Brearley and printed in Documentary History, I, 329; 
(4) that found among the manuscripts of William Paterson. These were all re- 
printed with explanatory notes in House Doc. No. 398, 69th Congress, 1st Sess., 
entitled Documents Illustrative of the Formation of the Union of the American States. 

3 Writings of James Madison (Hunt's cd.), IX, 502, Madison to John Tyler, 
1833. 



TUESDAY, MAY 29, 1787 141 

"The Resolutions proposed by him (Edmund Randolph) 
were the result of a consultation among the deputies, the 
whole number, seven, being present. The part which Vir- 
ginia has borne in bringing about the Convention suggested 
the idea that some such initiative step might be expected 
from their deputation; and Mr. Randolph was designated 
for that task. It was perfectly understood that the proposi- 
tions committed no one to their precise tenor or form ; and 
that the members of the deputation would be as free in dis- 
cussing and shaping them as the other members of the Con- 
vention. Mr. R. was made the organ on the occasion, being 
then the Governor of the State, of distinguished talents, 
and in the habit of public speaking. General Washington, 
though at the head of the list, was, for obvious reasons, dis- 
inclined to take the lead. It was foreseen that he would be 
immediately called to the presiding station. That the Con- 
vention understood the entire Resolutions of Mr. R. to be a 
mere sketch, in which omitted details were to be supplied 
and the general terms and phrases to be reduced to their 
proper details, is demonstrated by the use made of them in 
the Convention." 

Since the Resolutions comprising this Virginia Plan 
will be described in detail as they were taken up by the 
Convention, it is not necessary to give here more than 
a short summary. They provided for a National 
Legislature of two branches, one to be elected by the 
people, the other by the first branch ; the Legislature 
to have broad power to legislate wherever the States 
were incompetent or wherever the National harmony 
might otherwise be interrupted, also to have the power 
of negativing State laws which it regarded as contra- 
vening the Constitution. In the Legislature, the 
States were not to be represented equally, but according 
to number of free inhabitants or to amount of property. 
A National Executive and a National Judiciary were 
provided for. By omission of any provision for the 
necessity of action by the States after enactment of 



144 THE NATIONAL LEGISLATURE 

age of twenty, in the defence of the true principles of liberty, 
and to have seen productions from his pen, which in point 
of composition and argument would have done honor to the 
head and heart of the most experienced and most virtuous 
politician.'" 

OUT OF CONVENTION 

No intimation as to any of these proceedings of the 
Convention appeared in the newspapers, the Gazetteer 
simply saying (May 30) : "Ten States, we learn, were 
yesterday represented in Convention." 

Washington noted : l 

"Attended Convention, and dined at home. After which 
accompanied Mrs. Morris to the benefit concert of a Mr. 
Juhan (at the City Tavern)." 

General Henry Knox wrote from New York to 
General Washington, this day : 

"Mr. Pierce and Mr. Houston from Georgia set off from 
this place for Philadelphia yesterday. Mr. Sherman and 
Doctor Johnson will be in Philadelphia in the course of a 
week. I have not heard anything from New Hampshire but 
I am persuaded, from circumstances, that the delegates from 
that State will be with you by the 10th of June. I am indeed 
happy that the Convention will be so full as to feel a confi- 
dence that they represent the great majority of the people 
of the United States. The grumblings in Massachusetts 
still continue. . . . Events are fast ripening to birth, 
anarchy threatening. A few hours being sprung we shall 
find ourselves without system or government. So impressed 
is my mind with the evils about to happen, which will natu- 
rally arise from the construction and imbecilities of the State 
and General Constitutions of this country, that I have no 
hope of a free government but from the Convention. If 

1 The programme of this Concert (admission 7 sh. 6 d.) was as follows : "Act I 
New Overture, Reinagle ; Concerto Flute, Brown ; Song, Sarto ; Overture, Haydn. 
Act II, Sonata Piano Forte Mr. Juhan, Haydn and Reinagle ; Concerto Violon- 
cello, Capron; Solo Violin, Juhan; The Grand Overture, Martini." See Penn- 
sylvania Journal, May 23, 1787. 



TUESDAY, MAY 29, 1787 145 

that fails us, we shall find ourselves afloat on an ocean of 
uncertainty uncertain as to the shore on which we shall 
land, but most certain as to the storms we shall have to 
encounter.'* 

That there were statesmen in Virginia who had no 
confidence that the Convention would have any 
favorable results is seen from a letter from William 
Grayson to James Madison, written from Congress in 
New York, this day : 

"What will be the result of their meeting I cannot with 
any certainty determine, but I hardly think much good can 
come of it ; the people of America don't appear to me to be 
ripe for any great innovations and it seems they are ulti- 
mately to ratify or reject ; the weight of General Washington 
as you justly observe is very great in America, but I hardly 
think it is sufficient to induce the people to pay money or 
part with power. The delegates from the Eastward are for 
a very strong Government, and wish to prostrate all the State 
Legislatures and form a general system out of the whole; 
but I don't learn that the people are with them. On the con- 
trary, in Massachusetts, they think that Government too 
strong and are about rebelling again, for the purpose of mak- 
ing it more democratical. In Connecticut, they have rejected 
the requisition for the present year decidedly, and no man 
there would be elected to the office of a constable if he was 
to declare that he meant to pay a copper towards the domes- 
tic debt ; Rhode Island has refused to send members the 
cry there is for a good government after they have paid their 
debts, in depreciated paper : first demolish the Philistines, 
i.e., their creditors and then for propriety. New Hampshire 
has not paid a shilling since peace and does not ever mean to 
pay one to all eternity ; if it was attempted to tax the people 
for the domestic debt, 500 Shays would arise in a fortnight. 
In N. York, they pay well because they can do it by plunder- 
ing N. Jersey and Connecticut. Jersey will go great lengths, 
from motives of revenge and interest; Pennsylvany will 
join, provided you let the sessions of the Executive of 



146 THE NATIONAL LEGISLATURE 

America be fixed in Philada. and give her other advantages 
in trade to compensate for the loss of State power. I shall 
make no observations on the Southern States, but I think 
they will be, perhaps from different motives, as little dis- 
posed to part with efficient power as any in the Union." 

WEDNESDAY, MAY 30, 1787 

IN CONVENTION 
A National Government 

The Convention resolved itself for the first time 
into a Committee of the Whole, and the President 
(Washington) leaving the Chair, Nathaniel Gorham 
of Massachusetts (who had been President of the 
Congress of the Confederation in 1786 to 1787) was 
chosen by ballot as Chairman of the Committee. 

The first step made in this first meeting of the Com- 
mittee went to the root of the whole matter before the 
Convention ; for Randolph, as a substitute for the first 
of his Resolutions, moved that the Convention at its 
very outset should commit itself to the following basic 
proposition: "That a National Government ought to 
be established consisting of a supreme Legislative, 
Executive and Judiciary." Complete silence followed, 
as the delegates began to realize the far-reaching effect 
of this proposal. Then Pierce Butler of South Carolina 
stated that he wished Randolph "to show that the 
existence of the States cannot be preserved by any 
other mode than a National Government." 1 Gerry of 
Massachusetts, Read of Delaware, and General Pinck- 
ney of South Carolina were also shy of the proposal. 
After considerable discussion, however, Randolph's 
Resolution was voted Connecticut alone opposing, 
and New York being divided. It was the word 
"National" which alarmed and confused the delegates ; 

1 As reported in McHenry's Notes, which are fuller for this day than Madison's. 



WEDNESDAY, MAY 30, 1787 147 

for many feared that this term implied that the Nation 
should absorb and destroy the States. We of today 
are so accustomed to using the terms "National" and 
" Federal 5 ' as entirely interchangeable, both signifying 
simply the "Government of the United States", that 
it is difficult to realize the fears awakened in 1787, lest 
a "National Government" should mean a "consoli- 
dated" Government one with unlimited powers. 
Such, however, was not the intent. In using the word 
"National", as contradistinguished from "Federal", 
Randolph was endeavoring to express, not the extent 
of power to be possessed by the new Government, but 
its mode of operation. And, as George Mason of the 
Virginia delegation later explained it: "Under the 
existing Confederacy, Congress represents the States, 
not the people of the States; their acts operate on 
the States, not on the individuals. The case will be 
changed in the new plan of Government." " National " 
implied a Government which should "directly operate 
on individuals and possess compulsive power on the 
people of the United States" "Federal" implying a 
Government of compact, resting for enforcement of its 
acts "on the good faith of the parties." x "The term 
was used," wrote Madison later, "not in contra- 
distinction to a limited, but to a Federal Government. 
As the latter operated within the extent of its authority 
through requisitions on the Confederated States, and 
rested on the sanction of State Legislatures, the Govern- 
ment to take its place was to operate within the extent 
of its powers directly and coercively on individuals, and 
to receive the higher sanction of the people of the 
States. And there being no technical or appropriate 
denomination applicable to the new and unique system, 
the term * National' was used, with a confidence that it 

1 See speeches of George Mason, May 30, June 6 ; Gouverneur Morris, May SO ; 
Rufus King, June 1 (as reported in McHenry's Notes). 



148 THE NATIONAL LEGISLATURE 

would not be taken in a wrong sense." l That the 
Convention should at once abandon the form of 
Government contained in the Articles of Confederation 
and adopt an entirely new scheme was, indeed, a radical 
proposal. William Paterson of New Jersey was of the 
opinion that "the idea of a National Government, as 
contradistinguished from a Federal one, never entered 
into the mind" of any State in sending delegates; and 
Luther Martin of Maryland later said : "When I took 
my seat in the Convention, I found them attempting 
to bring forward a system which, I am sure, never had 
entered into the contemplation of those I had the honor 
to represent." 2 Richard Henry Lee wrote, after the 
Convention adjourned: "Had the idea of a total 
change [from the Confederation] been started, probably 
no State would have appointed members to the Con- 
vention. . . . Probably not one man in ten thousand 
in the United States had an idea that the old ship 
was to be destroyed." On the other hand, Charles 
Pinckney was right in saying to the South Carolina 
State Convention that the promoters of the Con- 
vention those "who had seriously contemplated the 
subject", had been from the outset "fully convinced 
that a total change of system was necessary. . . . 
They also thought that the public mind was fully 
prepared for the change. . . . The necessity of having 

1 Writings of James Madison (Hunt's ed.), X, Madison to Robert S. Garnett, 
Feb. 11, 1824; Madison to Andrew Stevenson, March 25, 1826; Madison to 
Thomas Cooper, Dec. 26, 1826. 

2 Paterson in the Convention, June 9; The Genuine Information (1788) by 
Luther Martin, Elliot's Debates, I, 388; Pamphlets on the Constitution (1888), "Let- 
ters of a Federal Farmer," October, 1787, by Richard Henry Lee ; Pinckney in the 
South Carolina State Convention in 1788, Elliot's Debates, IV, 254-256. Melanc- 
thon Smith of New York wrote in 1788 : "Previous to the meeting of the Conven- 
tion, the subject of a new form of Government had been little thought of 
and scarcely written upon at all/' But this statement was not supported by the 
facts. He continued: "The idea of a Government similar to [the Constitution] 
never entered the minds of the Legislature, who appointed the Convention, and of 
but very few of the members who composed it, until they had assembled and heard 
it proposed in that body." Pamphlets, supra. 



WEDNESDAY, MAY 30, 1787 149 

a Government which should at once operate upon the 
people and not upon the States was conceived to be 
indispensable by every delegation present, however 
they may have differed with respect to the quantum of 
power." The form of Government now offered the 
dual system combining States and a Nation in one 
working whole was new in history. Never before 
had there existed a Federal form of Republic in which 
the States should remain as sovereigns acting with 
limited powers upon their own citizens, and in which 
a central Government of the States should have Execu- 
tive, Legislative, and Judiciary authority to enforce its 
own limited sovereign powers upon the citizens of the 
States. John Lansing of New York was correct when 
he said in his State Convention: "I know not that 
history furnishes an example of a confederated Re- 
public coercing the States composing it, by the mild 
influence of laws operating on the individuals of those 
States. This, therefore, I suppose to be a new experi- 
ment in politics." 1 It is to be noted, however, that 
while such a separate central Government having 
independent Executive, Legislative, and Judicial De- 
partments empowered to act directly upon the people 
was, in fact, a new experiment, it had been discussed 
for several years by the leaders of thought in the 
various States, both in letters and in print. 2 

It is difficult today for us, who are so familiar with 
our system of Government, to reproduce the frame of 
mind of the men of 1787, who were accustomed to 
obeying only the orders, and complying with the 
regulations, of a State Government, and who found it 
impossible to conceive how they could obey both a 

i Elliots Debates. II, 210. 

a Madison wrote to William A. Duer, June 5, 1835: "The moment, indeed, a 
real Constitution was looked for as a substitute for the Confederacy, the distribu- 
tion of the Government into the usual departments became a matter of course with 
all who speculated on the prospective changes." 



150 THE NATIONAL LEGISLATURE 

National and a State Government, each acting within 
its own sphere of authority. Yet, when Pelatiah 
Webster, in his pamphlet published in 1783, suggested 
that the powers of sovereignty could be distributed 
between a National Government and the State Govern- 
ments, the idea was so entirely novel, that his proposition 
that the supreme authority should operate directly on 
the individual citizen aroused the ire of one who signed 
himself "A Connecticut Farmer", and who "thought 
it an 'outrage that a member of the General Assembly 
of Connecticut might be dragged down to Congress' 
and subjected to fine, imprisonment, and possibly 
corporal punishment." l 

Much of the opposition which arose in the Con- 
vention, and later in the State Conventions, to this 
National form of Government was based on the mis- 
taken belief that the intent of its framers was ulti- 
mately to consolidate all power in the central 
Government and to abolish or destroy the power of 
the States. It is important to note, therefore, that 
the Nationalists in the Convention, the ardent advo- 
cates of the Constitution, were equally warm in their 
insistence upon the necessity of preserving the State 
Governments with all their powers intact, except so 
far as the relinquishment of certain powers was neces- 
sary for National purposes. Thus, Randolph, him- 
self, stated that his plan "only meant to give the 
National Government power to defend and protect itself 
to take, therefore, from the respective Legislatures 
of States no more sovereignty than is competent to this 
end." James Wilson said that by a "National Govern- 
ment, he did not mean one that would swallow up the 
State Governments. . . . He was tenacious of pre- 

1 See Remarks on a Pamphlet entitled: A Dissertation on the Political Union . . . 
by a Citizen of Philadelphia, with some Brief Observations . . . by a Connecticut 
Farmer (1784) ; History of the United States (1912), by Edward Channing, III, 
470. 



WEDNESDAY, MAY 30, 1787 151 

serving the latter. . . . They were absolutely necessary 
for certain purposes which the former could not reach." 
And throughout the Convention, it was made clear by 
the most vigorous Nationalists that they regarded the 
preservation of the powers of the States, in their 
legitimate sphere and wherever they could not impair 
the National sovereignty, as of as great importance 
as the establishment of the National powers ; for, as 
Charles Pinckney said: "No position appears to me 
more true than this : that the General Government 
cannot effectually exist without reserving to the States 
the possession of their local rights. They are the 
instruments upon which the Union must frequently 
depend for the support and execution of their powers, 
however immediately operating upon the people, and 
not upon the States/' l 

OUT OF CONVENTION 
Washington noted ; 

"Attended Convention. Dined with Mr. (John) 
Vaughan. Drank tea, and spent the evening at a Wednes- 
day evening's party at Mr. and Mrs. [John] Lawrence's." 

The Gazetteer, the Gazette and the Journal printed a 
two-column letter signed "Harrington" addressed "To 
the Freemen of the United States." Portions of this 
striking argument in favor of a new Constitution were 
printed in many papers through the country and must 
have had a powerful influence. 2 The writer first said 
that he was "a citizen of Pennsylvania in a retired 
situation who holds and wishes for no share in the 
power or offices of his country and who often addressed 
you in the years 1774 and 1775 upon the interesting 

1 Randolph, May 29 ; Wilson, June 19 ; Charles Pinckney, June 25. 

2 See New York Independent Journal, June 2 ; Massachusetts Centinel, June 9 ; 
New Hampshire Spy, June 9, 12 ; Connecticut Courant, June 11 ; Salem Mercury, 
June 12 ; Virginia Independent Chronicle, June 13 ; Independent Chronicle (Boston), 
June 14, 1787 ; American Museum (June, 1787), I. 



152 THE NATIONAL LEGISLATURE 

subject of the liberties of America." He then con- 
cisely recited the necessity for a new form of Govern- 
ment: 

"... We must either form an efficient Government for 
ourselves, suited in every respect to our exigencies and inter- 
ests, or we must submit to have one imposed upon us by 
accident or usurpation. ... A foederal Shays may be more 
successful than the Shays of Massachusetts Bay or a 
body of men may arise who may form themselves into an 
order of hereditary nobility and by surprise or stratagem 
prostrate our liberties at their feet. This view of our situa- 
tion is indeed truly alarming. We are upon the brink of a 
precipice. . . . America has it in her power to adopt a 
government which shall secure to her all benefits of mon- 
archy without parting with any of the privileges of a repub- 
lic. She may divide her Legislature into two or three 
branches. She may unite perfect freedom and wisdom to- 
gether and may confer upon a supreme magistrate such a 
portion of executive power as will enable him to exhibit a 
representation of majesty, such as never was seen before, 
for it will be the majesty of a free people. To preserve a 
sense of his obligations to every citizen of the republic, he may 
be elected annually and made eligible for seven years, or for 
life. The more we abridge the States of their sovereignty 
and the more supreme power we concenter in an Assembly 
of the States (for by this new name let us call our Federal 
Government) the more safety, liberty, and prosperity will be 
enjoyed by each of the States. The ambition of the poor 
and the avarice of the rich demagogue can never be re- 
strained upon the narrow scale of a State Government. In 
an Assembly of the States, they will check each other. In 
this extensive reservoir of power, it will be impossible for 
them to excite storms of sedition or oppression. . . . Let 
the States who are jealous of each other's competitions and 
encroachments, whether in commerce or territory, or who 
have suffered under aristocratic or democratic juntos, come 
forward and first throw their sovereignty at the feet of the 
Convention. It is there only that they can doom their dis- 



WEDNESDAY, MAY 30, 1787 153 

putes, their unjust tender commutation laws their paper 
money their oppressive taxes upon land and their partial 
systems of finance to destruction." 

He then depicted the various classes of people whose 
interests would be protected. As to the public creditor, 
the soldier, and the citizen, "it is from the united 
power and resources of America only that they can 
expect permanent and substantial justice." Citizens 
of Western America could "fly to a foederal power for 
protection." "The farmer who groans beneath the 
weight of direct taxation" could "seek relief from a 
government whose extensive jurisdiction will enable it 
to extract the resources of our country by means of 
imposts and customs." The merchant could obtain 
"a general system of commercial regulation." The 
manufacturer and mechanic could find only in a general 
Assembly of States "power to encourage such arts and 
manufactures as are essential to the prosperity of our 
country." He then asked the people, in order "to 
beget confidence in and an attachment to a new Foe- 
deral Government" to attend "to the characters of the 
men who are met to form it." And he described them 
as follows : 

"Many of them were members of the first Congress that 
sat in Philadelphia in the year 1774. Many of them were 
part of that band of patriots who, with halters round their 
necks, signed the Declaration of Independence on the 
Fourth of July 1776. Many of them were distinguished in 
the field and some of them bear marks of the wounds they 
received in our late contest for liberty. 

Perhaps no age or country ever saw more wisdom, patriot- 
ism, and probity united in a single assembly than we now 
behold in a Convention of the States. 

Who can read or hear that the immortal Washington has 
again quitted his beloved retirement and obeyed the voice 
of God and his country by accepting the chair of this illus- 



154 THE NATIONAL LEGISLATURE 

trious body of patriots and heroes, and doubt of the safety 
and blessings of the government we are to receive from their 
hands ? Or who can hear of Franklin, Dickinson, Rutledge, 
Morris, Livingston, Randolph, Sherman, Gerry, Mifflin, 
Clymer, Pinckney, Read and many others that might be 
mentioned whose names are synonymous with Liberty and 
Fame and not long to receive from them the precious ark 
that is to preserve and transmit to posterity the freedom of 
America ? 

Under the present weak, imperfect and distracted govern- 
ment of Congress anarchy, poverty, infamy and slavery 
await the United States. 

Under such a government as will probably be formed by 
the present Convention, America may yet enjoy peace, 
safety, liberty and glory." 

On this same day, Lafayette was writing to Jay, as to 
the Convention : 

"May the Convention be the happy epocha of Federal, 
energetic, patriotic measures ! May the friends of America 
rejoice ! May her enemies be humbled, and her censors 
silenced at the news of her noble exertions in the contin- 
uance of those principles which have placed her so high in the 
annals of history and among the nations of the earth." 

William R. Davie, one of the delegates from North 
Carolina, wrote, this day, from Philadelphia, to James 
Iredell : l 

"After a very fatiguing and rapid journey, I arrived here 
on the 22d. The gentlemen of the Convention had been 
waiting from day to day for the presence of seven States ; 
on the 25th the members from New Jersey attended, and 
Gen. Washington was chosen President. Yesterday more 
States were represented, and the great business of the meet- 
ing was brought forward by Virginia, with whom the propo- 
sition for a Convention had originated. As no progress can 
yet be expected in a business so weighty, and at the same 
time so complicated, you will not look for any news from this 

1 Life and Correspondence of James Iredell (1858), by Griffith J. McRee, II, 161. 



WEDNESDAY, MAY 30, 1787 155 

quarter. Be so good as to favor me, by the next post, with 
your opinion how far the introduction of Judicial and Ex- 
ecutive powers, derived from Congress, would be politic or 
practicable in the States. And whether absolute or limited 
powers for the regulation of trade, both as to exports and 
imports, etc., I shall trouble you frequently; and I shall 
expect your opinion without reserve.** 

And Washington was writing to Jefferson in Paris : x 

"Having since been appointed by my native State to 
attend the National Convention, and having been pressed 
to a compliance in a manner which it hardly becomes me to 
describe, I have, in a measure, been obliged to sacrifice my 
own sentiments, and to be present in Philadelphia. . . . 

The business of this Convention is as yet too much in 
embryo to form any opinion of the conclusion. Much is 
expected from it by some ; not much by others ; and nothing 
by a few. That something is necessary none will deny ; for 
the situation of the General Government, if it can be called 
a Government, is shaken to its foundation, and liable to be 
overturned by every blast. In a word, it is at an end ; and, 
unless a remedy is soon applied, anarchy and confusion will 
inevitably ensue.*' 

During the preceding spring, a book by John Adams 
(then Minister to Great Britain) had been published in 
Boston and New York, entitled A Defense of the Con- 
stitutions of Government of the United States of America, 
the leading theses of which were a defense of the 
necessity of maintenance in a free republic of the 
independence of the three branches of government 
(the Executive, the Legislative, and the Judicial), and 
a strong argument for a Legislature consisting of two 
houses in order to preserve the necessary system of 
checks and balances. The subject, though now trite, 
was at that date not fully developed in political writings. 

1 Tne phraseology of this letter varies in different transcripts cf. Doc. Hint., 
IV, 172. 



156 THE NATIONAL LEGISLATURE 

Consequently, Adams' book, appearing as it did just at 
a time when theories of government were the subject of 
general discussions, had a profound influence which can 
be traced in the letters and newspapers and debates of 
the period, through phrases literally quoted. 1 Its effect 
upon the delegates in the Convention was clearly 
marked ; and Henry Knox, writing this day from New 
York to Mrs. Mercy Warren in Massachusetts, referred 
interestingly to this work in connection with the need 
for a strong National Government : 2 

"Our respectable and enlightened friend, Mr. Adams' 
book will be the surest basis of his reputation. ... It 
should have been entitled "The Soul of a Free Government/ 
But still it will be the means of great good. It is a word 
spoken in season. He clearly points out one of the capital 
causes of our misery and prostrate character the will, 
the caprice, the headlong conduct of a Government without 
strong checks by different branches, or a division of power 
by a balance. ... In addition to these local evils (paper 
money, ex post facto laws, etc.) all National character and 
interests are lost by the monstrous system of State Govern- 
ments. . . . Granted, says candor, but the remedy ? Par- 
don me, the Convention is sitting and shall one of the 
Cincinnati presume to give his opinion ? I confess, however, 
that my only hope of human assistance is founded on the 
Convention. Should they possess the hardihood to be un- 
popular and propose an efficient National Government, free 
from the entanglements of the present defective State sys- 

1 William R. Davie wrote to James Iredell, May 80, 1787: "Among the late 
publications of particular merit, a performance of Mr. J. Adams, the American 
Minister at the British Court, now signally engages the attention of the public." 
The Massachusetts Centinel, June 16, 1787, quoted a Philadelphia paper, containing 
a letter from "Sydney" as to the opportune publication of Adams' book: "An 
excellent work. ... It is to be hoped every freeman in the United States will 
furnish himself with a copy of this invaluable book. It is more essentially the 
duty of every person concerned in any way in the government of our country to read 
and study it." See also articles on Adams' book in New York Journal, May 3, 
New York Daily Advertiser, May 9, Freeman's Journal, May 16, 1787 ; and in many 
other newspapers. 

* Mast. Hist. Soc. Coll. (1025), LXXIII, Warren-Adams Letters, II, 294. 



WEDNESDAY, MAY 30, 1787 157 

terns, we may yet be a happy and great Nation. But I have 
no expectations, if their propositions should be truly wise, 
that they will be immediately accepted. I should rather 
suppose that they would be ridiculed, in the same way as 
was the ark of old while building by Noah. ... If the 
Convention should propose to erect a temple to liberty, on 
the solid and durable foundation of law and justice, all men 
of principle in the first instance will embrace the proposal. 
Demagogues and vicious characters will oppose for a while. 
But reason will at length triumph. But should the Con- 
vention be desirous of acquiring present popularity ; should 
they possess local and not general views ; should they pro- 
pose a patchwork to the present wretchedly defective thing 
called the Confederation, look out, ye patriots, supplicate 
Heaven, for you will have need of its protection. ... I 
wish at present to try the experiment of a strong National 
Republic. The State Governments should be deprived of 
the power of injuring themselves or their Nation. . . . This 
Government should possess every power necessary for 
National purposes which would leave the State Govern- 
ments but very little. But every power should be defined 
with accuracy and checked according to the highest wis- 
dom." 

Franklin had already written to Adams, May 18, 
that his " work is in such request here, that it is already 
put to press, and a numerous edition will speedily be 
abroad." And Dr. Benjamin Rush wrote to Richard 
Price in London, June 2, that : "Mr. Adams' book has 
diffused such excellent principles among us, that there 
is little doubt of our adopting a vigorous and com- 
pounded Federal Legislature. Our illustrious Minister 
in this gift to his country has done us more service than 
if he had obtained alliances for us with all the nations of 
Europe." l 

1 Other letters written by statesmen of the time describe the great impression 
made by Adams' book. See Appendix C, Madison to Jefferson, June 6 ; Jay to 
Adams, July 4, 28 ; Richard Henry Lee to Adams, Sept. 3 ; Jefferson to Adams, 
Sept. 28, 1787. 



158 THE NATIONAL LEGISLATURE 

THURSDAY, MAY 31, 1787 

IN CONVENTION 
A Legislature of Two Branches 

On this day, the arrival of Major William Pierce and 
William Houstoun of Georgia gave that State a repre- 
sentation the eleventh State to appear. 

The Committee took up and agreed to Randolph's 
second Resolution, without debate (Pennsylvania alone 
dissenting), viz. : "That the National Legislature ought 
to consist of two branches." l While this provision 
was in accord with the Constitutions of eleven of the 
States, nevertheless, a Legislature of only one branch 
existed in Georgia and Pennsylvania, and in the Con- 
gress under the Articles of Confederation. Moreover, 
the existence of a second branch of the Legislature 
the Senate had been, in Massachusetts, one of the 
chief grievances of those who sympathized with the 
movement which took outward shape in the Shays 
Rebellion, only six months prior ; for it was regarded 
as the representative of property. In many of the 
other States also, since the property qualification for 
members of the Senate was greater than for members 
of the lower House, and the property qualification 
required of the electors of the Senate was greater than 
those of the electors of the other branch, the State 
Senates were regarded as representative of the property 
interests. Under these conditions, it would not have 
been unnatural if there should have been considerable 
discussion over the adoption of a two-branch Legisla- 
ture. On this date, however, there was no difference 
of opinion on the subject. Later in the Convention 
(on June 16), John Lansing of New York raised the 

1 Madison stated that the vote of Pennsylvania was "given probably from com- 
plaisance to Doctor Franklin, who was understood to be partial to a single House of 
Legislation." 



THURSDAY, MAY 31, 1787 159 

point that the only object of having two branches was 
that one should serve as a check, but, said he, in a Con- 
gress, "the delegations of the different States are checks 
on each other.'* To this, James Wilson replied that 
"in a single House, there is no check but the inadequate 
one of the virtue and good sense of those who com- 
pose it." Roger Sherman of Connecticut (on June 20) 
also stated that he saw no necessity for two branches, 
and that the complaints of the Congress of the Con- 
federation had not been of the unwisdom of its acts, 
but the insufficiency of its powers. To these state- 
ments, George Mason of Virginia replied with finality, 
that while "the mind of the people of America . . . 
was unsettled as to some points ... in two points he 
was sure it was settled, in an attachment to republican 
government in an attachment to more than one 
branch in the Legislature." Undoubtedly, also, many 
of the delegates had been strongly impressed by the 
forceful argument against a one-house Legislature, 
which had been made by John Adams in his book, then 
recently published. 1 When this Resolution adopted by 
the Committee of the Whole came up for vote in the 
Convention, on June 21, seven States voted aye (after 
striking out the word "National"), with New York, 
New Jersey, and Delaware voting no, and Maryland 
divided. 

Election by the People 

The next of the Randolph Resolutions to be con- 
sidered on this May 31, was another crucial one : "That 
the members of the first branch of the National Legis- 
lature ought to be elected by the people of the sev- 
eral States." Here was presented the great question 

1 For an illuminating discussion of the bicameral (or two House) system in a 
Legislature, see Commentaries of the Constitution (1895), by Roger Foster, I, 461 
et fteq.1 and works cited ; see also The Living Constitution (1927), by Howard Lee 
McBain, 162-169. 



160 THE NATIONAL LEGISLATURE 

whether the new Government was to come from the 
people or from the State Legislatures. The line of 
cleavage among the delegates, developed thus early in 
the Convention, was striking. For it appeared then, 
and on many later occasions, that the most vigorous 
advocates of a National Government James Wilson, 
James Madison, Rufus King, and Gouverneur Morris 
were heartily in favor of popular election and 
trusted the action of the people ; while, in general, the 
opponents of the National form of Government, as 
well as those who later opposed the Constitution (like 
Elbridge Gerry of Massachusetts), distrusted the peo- 
ple and wished all powers to be derived from the 
State Legislatures. Those who, in 1788, charged the 
proponents of the Constitution with favoring aris- 
tocracy, and those who now contend that the Con- 
stitution was chiefly framed in the interests of property, 
overlook the fact that belief in the people was a 
cardinal feature of those who were most prominent in 
framing the Constitution. This will be shown even 
more strikingly in the debates on the election of the 
Executive. 

Eloquent arguments for popular election were made 
on this day. George Mason of Virginia said that the 
House "was to be the grand depository of the demo- 
cratic principles of the Government. ... It ought to 
know and sympathize with every part of the whole 
Republic. . . . We ought to attend to the rights of 
every class of the people. He had often wondered at 
the indifference of the superior classes of society to this 
dictate of humanity and policy; considering that, 
however affluent their circumstances or elevated their 
situations might be, the course of a few years not only 
might but certainly would distribute their posterity 
through the lowest classes of society. Every selfish 
motive, therefore, every family attachment ought to 



THURSDAY, MAY 31, 1787 161 

recommend such a system of policy as would provide 
no less carefully for the rights and happiness of the 
lowest than of the highest orders of citizens." Madison 
said that he "considered the popular election as essen- 
tial to every plan of free government. . . . The great 
fabric to be raised would be more stable and durable, 
if it should rest on the solid foundation of the people 
themselves, than if it should stand merely on the pillars 
of the Legislatures." Wilson wished to give the "Fed- 
eral pyramid ... as broad a basis as possible." On 
the other hand, Roger Sherman of Connecticut favored 
election of the House by the State Legislatures, saying 
that: "The people immediately should have as little 
to do as may be about the Government. They want 
information and are constantly liable to be misled." 
Gerry of Massachusetts also objected to popular 
election, saying that "the evils we experience flow from 
the excess of democracy", and that though he was still 
republican, he "had been taught by experience the 
danger of the levelling spirit." 

The Committee, on this May 31, voted for election 
of the first branch of the Legislature by the people, by 
a vote of six States to two, New Jersey and South 
Carolina voting no, and Connecticut and Delaware 
being divided. 1 Later, on June 6, the vote as to 
popular election of the first branch was reconsidered, 
and the subject was again debated. Charles Pinckney 
of South Carolina contended that "the people were less 
fit judges in such a case" ; and his colleague, General 
Pinckney, denied that choice by the people "would be 
a better guard against bad measures than by the 
Legislatures. . . . The latter had some sense of 
character and were restrained by that consideration." 

1 The Convention discussed also, on this day, the manner in which the second 
branch of the Legislature should be chosen, but could arrive at no conclusion. (See 
June 7.) 



162 THE NATIONAL LEGISLATURE 

Sherman again thought that "the right of participating 
in the National Government would be sufficiently 
secured to the people by their election of the State 
Legislatures ", and that the latter ought to choose 
members of the National Legislature. The weight of 
the argument, however, was enormously with those who 
insisted on a popular basis for the new Government. 
Wilson said that : "He wished for vigor in the Govern- 
ment, but he wished that vigorous authority to flow 
immediately from the legitimate source of all authority. 
The Government ought to possess not only, first, the 
force, but secondly, the mind or sense of the people at 
large. The Legislature ought to be the most exact 
transcript of the whole society. Representation is 
made necessary only because it is impossible for the 
people to act collectively." Mason said that in the 
new Government, the people and not the States will be 
represented. "They ought, therefore, to choose the 
Representatives. The requisites in actual repre- 
sentation are that the Representatives should sym- 
pathize with their constituents, should think as they 
think and feel as they feel, and that for these purposes 
should even be residents among them." Madison 
stated that he considered "an election of one branch, 
at least, of the Legislature by the people immediately, 
as a clear principle of free government." Pinckney's 
motion was defeated, only Connecticut, New Jersey, 
and South Carolina voting for it. 

When this vote of the Committee of the Whole came 
before the Convention for final action, on June 21, 
General Pinckney, seconded by Luther Martin of 
Maryland, moved that the first branch, instead of 
being elected by the people, be chosen "in such manner 
as the Legislature of each State should direct." Mason 
again opposed, urging that "whatever inconveniency 
may attend the democratic principle, it must actuate 



THURSDAY, MAY 31, 1787 163 

one part of the Government ; it is the only security for 
the rights of the people." Wilson said that he con- 
sidered popular election "not only as the corner stone 
but as the foundation of the fabric." No one supported 
General Pinckney, except his colleague, Rutledge ; and 
the motion was lost by a vote of 6 States to 4, with 
Maryland divided. Thereupon, with only the dis- 
senting vote of New Jersey and with Maryland divided, 
nine States voted that the first branch of the Legisla- 
ture be elected by the people. 

This was the first great victory for popular and 
liberal Government under the new Constitution. 
"They (the Representatives) are of the People and 
return again to mix with the People, having no more 
durable pre-eminence than the different grains in an 
hourglass ; such an Assembly cannot easily become 
dangerous to liberty ; they are the servants of the 
People, sent together to do the People's business," so 
wrote Franklin in picturesque language. 1 

The Powers of the Legislature 

The third crucial Resolution proposed by Randolph 
was next considered on this May 31 that establishing 
the powers of the National Legislature, as follows : 
"To enjoy the Legislative rights vested in Congress by 
the Confederation, and moreover to legislate in all cases 
to which the separate States are incompetent or in 
which the harmony of the United States may be 
interrupted by the exercise of individual legislation." 
The lack of power possessed by the Congress of the 
Confederation was one of the great evils of the old 
system. But in suggesting additional powers, few 
statesmen hitherto had ever dreamed of vesting Con- 
gress with such a breadth of authority as was given by 
this Resolution. It is true that, as Madison wrote 

1 Franklin to Whatley, May 23, 1788. 



164 THE NATIONAL LEGISLATURE 

later, the entire Resolutions were presented as a "mere 
sketch in which omitted details were to be supplied, 
and the general terms and phrases to be reduced to the 
proper details." l Nevertheless, in view of the unre- 
stricted language used, it is small wonder that Pierce 
Butler of South Carolina, who had, on the day before, 
said that he was "willing to go great lengths", now 
expressed his fear that "we were running into an 
extreme in taking away the powers of the States", or 
that his colleagues, Rutledge and Charles Pinckney, 
"objected to the vagueness of the term ' incompetent' 
and desired before voting to see an exact enumeration 
of the powers comprehended by this definition." 
Though Randolph, in answer, "disdained any intention 
to give indefinite powers to the National Legislature", 
Madison, on the other hand, stated that "he had 
brought with him into the Convention a strong bias in 
favor of an enumeration and definition of the powers nec- 
essary to be exercised by the National Legislature ; but 
had also brought doubts concerning its practicability. 
His wishes remained unaltered ; but his doubts had be- 
come stronger. What his opinion might ultimately be, 
he could not tell. But he should shrink from nothing 
which should be found essential to such a form of 
Government as would provide for the safety, liberty, 
and happiness of the community." It is probable that 
the Committee did not grasp the full extent of its 
action at this time, for, without any further debate, it 
accepted the Resolution, with no dissenting vote and 
with Connecticut divided. 

Power to Negative State Laws 

The Committee then proceeded to consider the 
extraordinary proposal, made in Randolph's sixth 

1 Madison to John Tyler, 1833. Writings of James Madison (Hunt's ed.). 
IX, 503. 



THURSDAY, MAY 31, 1787 165 

Resolution, to give Congress authority to negative all 
laws passed by the States "contravening in its opinion 
the Articles of Union", in other words, power to reject 
any State statute which in its opinion should contra- 
vene any of the extremely broad objects as to which 
Congress, at that stage of the Convention, was author- 
ized to legislate. It is a remarkable fact that, on this 
May 31, the Convention (all the States except Mary- 
land being then represented) was willing to grant to 
Congress such an extreme authority over State laws, 
and even more remarkable that it did so "without 
debate or dissent" (after adding to the Resolution a 
further power to negative State laws contravening 
National treaties). 1 

To understand this action, one must appreciate with 
what grave apprehension the unwise and unjust legis- 
lation of the States had been regarded, and to what an 
extent it had been a factor in bringing about the 
Convention. 2 As early as 1783, George Mason of 
Virginia had written : 3 

"A strict adherence to the distinctions between right and 
wrong for the future is absolutely necessary to restore that 
confidence and reverence in the people for the Legislature 
which a contrary conduct has so greatly impaired, and with- 
out which their laws must ever remain little better than a 
dead letter. Frequent interferences with private property 
and contracts, retrospective laws destructive of all public 

1 See the further debates on this power to negative State laws, on June 8 and 
July 17, 1787, infra, pp. 316-324. 

*See Madison, June 6, 7, 8, 9, July 17, 21, 25; G. Morris, July 21, Aug. 15; 
Mercer, Sept. 8 ; Dickinson, Aug. 14, 1787. Madison wrote to Jefferson, October, 
1787 : "The mutability of the laws of the States is found to be a serious evil. The 
injustice of them has been so frequent and so flagrant as to alarm the most steadfast 
friends of Republicanism. I am persuaded I do not err in saying that the evils 
issuing from these sources contributed more to that uneasiness which produced the 
Convention and prepared the public mind for a general reform than those which 
accrued to our National character and interest from the inadequacy of the Confed- 
eration to its immediate objects/' 

3 Mason to William Cabell, Life and Times of James Madison (1859), by William 
Cabell Rives, II, 225. 



166 THE NATIONAL LEGISLATURE 

faith as well as confidence between man and man, and fla- 
grant violations of the Constitution, must disgust the best 
and wisest part of the community, occasion a depravity of 
manners, bring the Legislature into contempt, and finally 
produce anarchy and public convulsion." 

And early in the Convention, Madison had said that 
effectual provision "for the security of private rights 
and the steady dispensation of justice" was essential, 
"since interferences with these, perhaps more than 
anything else, produced this Convention." And again, 
he referred to the trespasses of the States on each other, 
giving preference to their own citizens, and to aggres- 
sions on the rights of other States by emissions of paper 
money and kindred measures ; also to the retaliating 
Acts passed by the States, as a "threatened danger not 
to the harmony only, but the tranquillity of the Union." 
Again, he said that : "Experience in all the States had 
evinced a powerful tendency in the Legislature to 
absorb all power into its vortex. This was the real 
source of danger to the American Constitution." John 
F. Mercer of Maryland said: "What led to the 
appointment of this Convention? The corruption 
and mutability of the Legislative Councils of the States. 
If the plan does not remedy these, it will not recommend 
itself." Gouverneur Morris of Pennsylvania also con- 
stantly expressed his opinion that "the public liberty 
was in greater danger from Legislative usurpations than 
from any other source " ; and that Legislative insta- 
bility and Legislative tyranny were the great dangers 
to be apprehended. And John Dickinson of Delaware 
said that "all were convinced of the necessity of making 
the General Government independent of the prejudices, 
passions, and improper views of the State Legislatures." 
These views pervaded the Convention and influenced 
much of its action. Nearly all the delegates agreed 
that a curb on State legislation must be provided in the 



THURSDAY, MAY 31, 1787 167 

new Constitution, but the difficult question was : how 
shall it be applied ? By the Legislature, in the shape 
of preventive action or corrective statutes; by the 
Executive, in the shape of force ; or by the Judiciary, 
in the shape of Court decisions, in cases involving State 
laws? The Convention began by adopting the first 
method. The idea was apparently original with Madi- 
son, and had never been "suggested or conceived 
among the people." "No speculative projector, and 
there are enough of that character among us in politics, 
as well as in other things, has in any pamphlet or news- 
paper thrown out the idea," said Elbridge Gerry. 1 
As early, however, as March 19, 1787, Madison had 
written to Jefferson that, in addition to the positive 
powers of legislation to be vested in Congress, it would 
be necessary "to arm the Federal head with a negative 
in all cases whatsoever on the local Legislatures" : 

"Without this defensive power, experience and reflection 
have satisfied me that however ample the Federal powers 
may be made, or however clearly their boundaries may be 
delineated on paper, they will be easily and continually 
baffled by the Legislative authorities of the States. The 
effect of this provision would be not only to guard the 
National rights and interests against invasion, but also to 
restrain the States from thwarting and molesting each other 
and even from oppressing the minority in themselves by 
paper money and other unrighteous measures which favor 
the interests of the majority." 

To Randolph, he had written, April 8, suggesting that 
the power to negative be vested in the Senate ; and to 
Washington, he had written, April 16, that a power to 
negative in all cases whatsoever appeared to him "ab- 
solutely necessary and the least possible encroachment 
on the State jurisdiction. Without this defensive 
power, every positive power that can be given on paper 

1 Speech of Gerry, in Convention, June 8, 1787. 



168 THE NATIONAL LEGISLATURE 

will be evaded and defeated." Madison, at the time, 
seems not to have thought of the means of controlling 
State legislation which was later adopted by the Con- 
vention, namely specific restraints on State legislation 
and enforcement of these restraints by the National 
Judiciary. It is a striking fact, which has not been 
emphasized by historians, that the first suggestion that 
the proper method of curbing State laws violative of the 
Constitution lay in the Judiciary, came from Thomas 
Jefferson. Replying to Madison's letter, June 20, 
1787, he wrote: 1 

"The negative proposed to be given them on all the acts 
of the several Legislatures is now for the first time suggested 
to my mind. Prima facie I do not like it. It fails in an 
essential character, that the hole and the patch should be 
commensurate; but this proposes to mend a small hole by 
covering the whole garment. Not more than 1 out of 100 
State acts concern the Confederacy. This proposition then, 
in order to give them 1 degree of power which they ought to 
have, gives them 99 more which they ought not to have, 
upon a presumption that they will not exercise the 99. But 
upon every act there will be a preliminary question : Does 
this act concern the Confederacy? And was there ever a 
proposition so plain as to pass Congress without a debate? 
Their decisions are almost always wise, they are like pure 
metal. But you know of how much dross this is the result. 
Would not an appeal from the State Judicatures to a Federal 
Court, in all cases where the Act of Confederation controuled 

1 This letter was probably not received by Madison until August, as it took six 
to eight weeks for letters to arrive from Paris. See also esp. Jefferson to Madison. 
March 15, 1789 (replying to Madison's letters of Oct. 17, Dec. 8, 12, 1788), in which 
Jefferson favored judicial review of legislation: "In the argument in favor of a 
declaration of rights, you omit one which has great weight with me the legal 
check which it puts into the hands of the Judiciary. ..." 

It is to be noted that Richard Henry Lee wrote to George Mason, May 12, 
1787 : "Do you not think, sir, that it ought to be declared by the new system, that 
any State act of legislation that shall contravene or oppose the authorized acts of 
Congress, or interfere with the expressed rights of that body shall be ipso facto void, 
and of no force whatsoever." Letters of Richard Henry Lee (ed. by J. C. Ballagh, 
1914), II. 



THURSDAY, MAY 31, 1787 169 

the question, be as effectual a remedy, and exactly commen- 
surate to the defect? A British creditor, e.g., sues for his 
debt in Virginia ; the defendant pleads an act of the State 
excluding him from their Courts; the plaintiff urges the 
Confederation and the treaty made under that, as controul- 
ing the State law; the Judges are weak enough to decide 
according to the views of their Legislature ; an appeal to a 
Federal Court sets all to rights. It will be said that this Court 
may encroach on the jurisdiction of the State Courts. It 
may, but there will be a power, to wit Congress, to watch 
and restrain them. But place the same authority in Con- 
gress itself, and there will be no power above them to per- 
form the same office. They will restrain within due bounds 
a jurisdiction exercised by others much more rigorously than 
if exercised by themselves." 

It is possible that the idea of judicial enforcement of 
restraints on State legislation may also have been 
fostered by the publication, just as the Convention met, 
of a pamphlet entitled "Fragments on the Confedera- 
tion of the American States", in which it was proposed 
that "in order to prevent an oppressive exercise of the 
powers deposited with Congress, a jurisdiction should 
be established to interpose and determine between the 
individual States and the Federal body upon all dis- 
puted points, and being stiled The Equalizing Court, 
should be constituted and conducted in the following 
manner." l This scheme, as widely reprinted in the 
newspapers, provided for the division of the States into 
three equal sections, and for the nomination by the 
Legislature of each State of one candidate "skilled in 
economics and jurisprudence' 5 , Congress to draw by 
lot one Judge for each section. "It should be the duty 
of this Court to hear and determine on all appeals made 
by Congress against a State or by a State against Con- 

1 See Pennsylvania Gazette, June 6, 1787. This pamphlet was published by 
Thomas Dobson on 2d St.. near Chestnut, price 6 d. 



170 THE NATIONAL LEGISLATURE 

gress, whose determination shall be final and binding 
upon the parties." Madison's insistence on the neces- 
sity of a curb on State Legislatures was due to the 
underlying theory that there were individual rights, 
based on conscience and natural justice, which not even 
the majority in a government should have power to 
violate that a Constitution must provide restraints 
on the majority and protection to the minority. "In 
all cases where a majority are united by a common 
interest or passion, the rights of the minority are in 
danger", he said; and he pointed out that this was 
true, whether the majority was formed on a basis of 
property or lack of property, or of religion, of race, of 
class or of politics. 1 Since oppressive use of power by 
a strong faction could more easily prevail in a small 
than in a large community, he considered the rights of 
minorities to be safer in the hands of a National Legis- 
lature elected by the people with power to restrain the 
State Legislatures. It is interesting to note that 
Madison's theory was in reality that on which the 
Fourteenth Amendment was later based providing 
a National guaranty that the States should not deprive 

1 Madison, June 6. Mason said, Aug. 13: "Notwithstanding the superiority 
of the Republican form over every other, it had its evils. The chief ones were the 
danger of the majority oppressing the minority. . . ." See also Mason, Aug. 
21. 29. 

Madison wrote to Jefferson, Oct. 14, 1787: "If then there must be different 
interests and parties in society, and a majority when united by a common interest 
or passion cannot be restrained from oppressing the minority, what remedy can be 
found in a Republican Government where the majority must ultimately decide, 
but that of giving such an extent to its sphere that no common interest or passion 
will be likely to unite a majority of the whole number in an unjust pursuit. . . . 
The same security seems requisite for the civil as for the religious rights of indi- 
viduals. If the same sect form a majority and have the power, other sects will be 
sure to be depressed. . . . The great desideratum in Government is, so to modify 
the sovereignty as that it may be sufficiently neutral between different parts of the 
Society to controul one part from invading the rights of another, and at the same 
time sufficiently controuled itself from setting up an interest adverse to that of the 
entire Society. ... In the extended Republic of the United States, the General 
Government would hold a pretty even balance between the parties of particular 
States, and be at the same time sufficiently restrained by its dependence on the 
community from betraying its general interest." 



THURSDAY, MAY 31, 1787 171 

persons of their life, liberty, or property without due 
process or deny the equal protection of the laws. In 
Rufus King's Notes, under date of June 4, Madison's 
view as to minority protection was well summarized, 
in connection with the proposal to give to the Execu- 
tive, joined with the Judiciary, the power to negative 
laws: "A check on the Legislature is necessary. 
Experience proves it to be so, and teaches us what has 
been thought a calumny on a Republican Government 
is nevertheless true in all countries are diversities of 
interest, the rich and the poor, the debtor and creditor, 
the followers of different demagogues, the diversity of 
religious sects. The effects of these divisions in ancient 
Governments are well known, and the like causes will 
now produce like effects. We must, therefore, intro- 
duce in our system provisions against the measures of 
an interested majority a check is not only necessary 
to protect the Executive power, but the minority in the 
Legislature." 

Power to Enforce 

The last of the crucial Resolutions to be discussed, 
this day, was that which gave the National Legislature 
power "to call forth the force of the Union against any 
member of the Union failing to fulfill its duty under the 
Articles thereof." One of the defects under the Arti- 
cles of Confederation had been the lack of power in 
the Congress to compel any State to comply with the 
provisions of the Articles, or with any requisition for 
troops needed in the National defence or for money to 
pay the National debts. This proposal was designed 
to supply the deficiency. But Madison now stated, 
that the more he reflected on the use of force, "the more 
he doubted the practicability, the justice, and the 
efficacy, when applied to people collectively, and not 
individually", and he moved to postpone the clause. 



172 THE NATIONAL LEGISLATURE 

This was done, and it was never acted upon there- 
after. 1 

OUT OF CONVENTION 

Washington noted : 

" The State of Georgia came on the floor of the Conven- 
tion today (by the arrival of Maj. Pierce and Mr. Hous- 
toun) which made a representation of ten States [eleven, in 
fact]. Dined at Mr. Francis's, and drank tea with Mrs. 
Meredith." 

1 Charles Pinckney, on June 8, said that "any Government for the United States 
formed on the supposed practicability of using force against the unconstitutional 
proceedings of the States would prove as visionary and fallacious as the Govern- 
ment of Congress/' Randolph, himself, on June 16, said that coercion of States 
was "impracticable" and that "we must resort therefore to a National Legislation 
over individuals." Mason, on June 20, said that civil liberty and military execu- 
tion were incompatible in a Government, and that any plan (like Paterson's) which 
could not be enforced without military coercion was impracticable. Finally on 
July 14, Madison said that "the practicability of making laws with coercive sanc- 
tions for the States as political bodies had been exploded on all hands." 



CHAPTER THREE 

THE EXECUTIVE, THE JUDICIARY, AND THE REPORT 
OF THE COMMITTEE OF THE WHOLE 

June 1, 2 . . . The Executive and His Powers 

(JuneS) . . . (Sunday) 

June 4 .... The Veto Power 

June 5, 6 . . . The Judiciary Ratification Election 

of the House 
June 7, 8, 9 . . Election of the Senate Negative on 

State Laws Suffrage in the Senate 
(June 10) ... (Sunday) 
June 11 ... Representation in the House 
June 12, IS, 14 . Report of the Committee of the Whole 

FRIDAY, JUNE 1, 1787 

IN CONVENTION 
The Executive 

Having disposed of the Legislature and its powers, 
the Committee took up the subject of the Executive 
and his powers. Here they approached one of the 
most difficult of all their problems. Fear of a return 
of Executive authority like that exercised by the Royal 
Governors or by the King had been ever present in the 
States from the beginning of the Revolution. Such 
Executive functions as the Congress of the Confeder- 
ation possessed had been performed by Committees of 
three, until the appointment in 1781 of single officials 
as Secretary of Foreign Affairs, Secretary at War, and 
Superintendent of Finance. And the somewhat auto- 



174 THE EXECUTIVE; THE JUDICIARY 

cratic acts of Robert Morris in the latter office had 
reawakened fear of an Executive in the minds of many, 
especially of the older Revolutionary patriots, and had 
led to the substitution of a Treasury Board. When, 
therefore, James Wilson now made the bold proposal 
that "a National Executive to consist of a single person 
be instituted", there was "a considerable pause" 
among the delegates; and Franklin, observing "that 
it was a point of great importance", urged the dele- 
gates to "deliver their sentiments on it." John 
Rutledge of South Carolina "animadverted on the 
shyness of gentlemen on this and other subjects. He 
said it looked as if they supposed themselves precluded 
by having frankly disclosed their opinions from after- 
wards changing them, which he did not take to be at all 
the case." Wilson, Charles Pinckney, and Rutledge 
favored a single Executive. Roger Sherman of Con- 
necticut presented the restricted view which was then 
held of the position of an Executive in the Govern- 
ment; for, said he, as it was "nothing more than an 
institution for carrying the will of the Legislature into 
effect", the Executive should be appointed by the 
Legislature and its number fixed by the same body. 
James Wilson, while conceiving that the only powers 
"strictly Executive were those of executing the laws 
and appointing officers, not appertaining to and ap- 
pointed by the Legislature", insisted that a single 
magistrate would give "most energy and despatch to the 
office." Madison thought that before choice be made 
"between a unity and plurality in the Executive, the 
extent of his authority ought to be first agreed upon." 
Randolph favored an Executive of three persons 
and strenuously opposed a single Executive, regarding 
it "as the foetus of monarchy." George Mason of 
Virginia concurred with his colleague, Randolph, and 
advocated joining an Executive of three persons with 



FRIDAY, JUNE 1, 1787 175 

a Council of Revision (composed of members of the 
Judiciary), whereby "we shall increase the strength of 
the Executive in that particular circumstance in which 
it will most want strength in the power of defending 
itself against the encroachments of the Legislature." 
He was inclined to think a strong Executive necessary, 
but "if strong and extensive powers are vested in the 
Executive, and that Executive consists only of one 
person, the Government will of course degenerate into 
a monarchy a Government so contrary to the genius 
of the people that they will reject even the appearance 
of it." To allay State jealousies, he proposed that "one 
member of the Executive be chosen by the Northern 
States, one by the Middle, and one by the Southern." l 
James Wilson, on the other hand, argued that "all the 
thirteen States, though agreeing in scarce any other 
instance, agreed in placing a single magistrate at the 
head of the Government. The idea of three heads has 
taken place in none. . . . Among three equal mem- 
bers, he foresaw nothing but uncontrolled, continued, 
and violent animosities, which would not only interrupt 
the public administration, but diffuse their poison 
through the other branches of the Government, through 
the States, and at length through the people at large." 
The debate on the subject was concluded on Monday, 
June 4, when the Committee adopted the single Execu- 
tive, by a vote of 7 States to 3 (Delaware, Maryland, 
and New York being opposed). When the Convention, 
on July 17, considered this part of the report of the 
Committee of the Whole, it was accepted with no 
dissenting vote. 2 

1 Madison in his Notes of Debates gives an incomplete report of George Mason's 
speech and does not include the portion quoted above. The speech may be found 
in more complete form in the George Mason Papers MSS. in Library of Congress. 

' It is to be noted that Hugh Williamson of North Carolina, on July 24, stated 
that " he had wished the Executive power to be lodged in three men taken from three 
districts into which the States should be divided. As the Executive is to have a 
kind of veto on the laws, and there is an essential difference of interests between 



176 THE EXECUTIVE; THE JUDICIARY 

The importance of having a strong and independent 
Executive to counterbalance the Legislative Depart- 
ment was insisted upon throughout the Convention; 
for, as Hamilton pointed out, later, in The Federalist 
(No. 71) : 

"The tendency of the Legislative authority to absorb 
every other has been fully displayed and illustrated. . . . 
In governments purely republican, this tendency is almost 
irresistible. The representatives of the people in a popular 
assembly seem sometimes to fancy that they are the people 
themselves, and betray strong symptoms of impatience and 
disgust at the least sign of opposition from any other quar- 
ter, as if the exercise of its rights, by either the Executive or 
Judiciary, were a breach of their privileges and an outrage 
to their dignity. They often appear disposed to exert an 
imperious control over the other departments ; and as they 
commonly have the people on their side, they always act 
with such momentum as to make it very difficult for the other 
members of the Government to maintain the balance of the 
Constitution.'* 

Executive Powers 

With reference to the powers to be vested in the 
Executive, it must be recalled that most of the early 
State Constitutions granted little authority to their 
Governor or other Executive. In many States, he was 
scarcely more than a military official, taking slight part 
in the political administration of the Government, In 
practically all the States, he shared his powers with 
a Privy Council; and in all the States, the powers 
which he was to exercise were specifically prescribed by 
the State Constitutions ; for the people did not intend 
that any Governor should exercise the prerogatives 
exercised by the Crown in England, unless expressly 

the Northern and Southern States, particularly in the carrying trade, the power 
will be dangerous, if the Executive is to be taken from part of the Union, to the 
part from which he is not taken. . . . Another objection against a single Magis- 
trate is that he will be an elective King." 



FRIDAY, JUNE 1, 1787 177 

conferred on him. It is probable that Madison and 
Randolph in preparing the Virginia Plan had in mind 
the conception of Executive power which Thomas 
Jefferson had set forth in his Draft of a Fundamental 
Constitution for Virginia in 1783, as follows : l 

"The Executive powers shall be exercised by a Governor, 
who shall be chosen by joint ballot of both Houses of 
Assembly. . . . By Executive powers, we mean no refer- 
ence to those powers exercised under our former government 
by the Crown as of its prerogative, nor that these shall be 
the standard of what may or may not be deemed the rightful 
powers of the Governor. We give them these powers only, 
which are necessary to execute the laws (and administer the 
government), and which are not in their nature either Legis- 
lative or Judiciary. The application of this idea must be 
left to reason. We do, however, expressly deny him the 
prerogative powers of erecting courts, offices, boroughs, 
corporations, fairs, markets, ports, beacons, light-houses, 
and sea marks; of laying embargoes, of establishing pre- 
cedence, of retaining within the State, or recalling to it any 
citizens thereof, and of making denizens, except so far as he 
may be authorized from time to time by the Legislature to 
exercise any other like powers." 

In the Randolph Resolutions, the only express pro- 
vision for power in the Executive was that "besides a 
general authority to execute the National laws, it ought 
to enjoy the Executive rights vested in Congress by the 
Confederation." No specific power was given to 
appoint officers. The State Constitutions, however, 
had made express provisions as to the appointive 
power. In some States, as in Georgia and New 
Jersey, the Governor had no power to appoint any 
civil officers whatever; in some States, he could 
appoint only certain civil officers, the Legislature 
appointing the others, as in Delaware, Virginia, Penn- 

1 Writings of Thomas Jefferson (Ford's ed.), IV, 155-156. Jefferson sent a copy 
of this draft to Madison in a letter of June 17, 1788. 



178 THE EXECUTIVE; THE JUDICIARY 

sylvania, and South Carolina. In Massachusetts, 
New Hampshire, and New York, power of appointment 
was in the Governor and his Council. In practically 
all the States, however, appointments by the Governor 
could only be made by and with the consent of a Council 
chosen to assist and advise him. Madison now thought 
that the extent of Executive authority should be more 
clearly defined, and he moved, as a substitute, that the 
Executive have "power to carry into effect the National 
laws, to appoint to offices in cases not otherwise pro- 
vided for, and to execute such other powers not Legis- 
lative or Judiciary in their nature as may from time 
to time be delegated by the National Legislature." 
Objections being raised to the last portion of his 
motion, Madison replied that he "did not know that 
the words were absolutely necessary, or even the pre- 
ceding words ' to appoint to offices ', etc., the whole being 
perhaps included in the first member of the propo- 
sition." 1 This was a most significant admission that 
the power to appoint to office might be included in, and 
implied from, the power to execute the laws. The 
Committee of the Whole, on motion of Charles Pinck- 
ney, voted to eliminate as unnecessary, the words "to 
execute such other powers ", etc., contained in Madison's 
proposal. It, however, retained the power "to appoint 
to offices in cases not otherwise provided for." This 
left to the Executive the power to appoint all officers, ex- 
cept Judges who were (under the Randolph Resolution) 
to be appointed by the National Legislature (changed 
later, by vote of the Committee, to by the Senate). 2 

No express provision, whatever, was made as to 
any power of removal. But if Madison was correct in 

1 This statement by Madison has an interesting bearing upon the question of the 
Executive's power of removal which was recently decided in Myers v. United States, 
272 IT. S. 52 in 1926. It is singular that neither the Chief Justice nor the dissenting 
Justices in their opinions made any reference to Madison's suggestion. 

* These powers of the President were accepted by the Convention, on July 26. 



FRIDAY, JUNE 1, 1787 179 

implying a power to appoint from a power to execute 
the laws, clearly a power of removal might be deduced 
from the same source. 1 

It is a remarkable fact that this power to appoint was 
given to the Executive alone, without any requirement 
of advice and consent of the Senate or of any other body. 
For under the State Constitutions, the Executives had 
no such independent authority, and their powers were 
always subject to advice and consent of a Council. 
That the Federal Convention, notwithstanding its 
jealousy of Executive power and its fear of erecting 
anything resembling monarchy, should, at this stage 
have been willing to grant so broad and unprecedented 
a power of appointment to the National Executive 
alone, and without constituting any Council for him, 
is a striking example of their desire to establish the 
entire independence of the Executive branch of the 
Government. 2 

OUT OF CONVENTION 
Washington noted : 

"Attending in Convention, and nothing being suffered to 
transpire no minutes of the proceedings has been or will be 
inserted in this diary. 

Dined with Mr. John Penn, and spent the evening at a 
superb entertainment at Bush-hill given by Mr. (William) 
Hamilton (the owner of it) at which were more than one 
hundred guests." 

1 Power of removal by the Executive, if it existed in the States, must have been 
implied from the Executive's power to execute the laws ; for in no State Constitu- 
tion prior to 1787 was there any specific provision authorizing the Executive to 
remove, except as follows : in Delaware, a provision was made for appointment by 
the Executive and Privy Council " and all such officers shall be removed on convic- 
tion of misbehaviour at common law, or on impeachment, or upon the address of 
the General Assembly" ; in Maryland, the Governor "may also suspend or remove 
any civil officer who has not a commission during good behaviour." The Charter 
of Rhode Island of 1663 which served as its State Constitution stated that certain 
officers were "for any misdemeanour or default to be removable by the Governor, 
Assistants and Company." 

2 For the subject of an Executive Council, see infra under date of September 7. 



180 THE EXECUTIVE; THE JUDICIARY 

On this day, George Mason of Virginia wrote to his 
son, George Mason, Jr., his high opinion of the Con- 
vention : 

"The idea I formerly mentioned to you, before the Con- 
vention met, of a great National Council, consisting of two 
branches of the Legislature, a Judiciary and an Executive, 
upon the principle of fair representation in the Legislature, 
with powers adapted to the great objects of the Union, and 
consequently a control in those instances on the State Leg- 
islatures, is still the prevalent one. Virginia has had the 
honor of presenting the outlines of the plan, upon which the 
Convention is proceeding ; but so slowly that it is impossible 
to judge when the business will be finished, most probably 
not before August festina lente may very well be called our 
motto. When I first came here, judging from casual con- 
versations with gentlemen from the different States, I was 
very apprehensive that, soured and disgusted with the 
unexpected evils we had experienced from the democratic 
principles of our Governments, we should be apt to run into 
the opposite extreme, and in endeavoring to steer too far 
from Scylla, we might be drawn into the vortex of Charybdis, 
of which I still think there is some danger, though I have the 
pleasure to find in the Convention, many men of fine repub- 
lican principles. America has certainly, upon this occasion, 
drawn forth her first characters ; there are upon this Conven- 
tion many gentlemen of the most respectable abilities, and 
so far as I can discover, of the purest intentions. The eyes 
of the United States are turned upon this assembly, and their 
expectations raised to a very anxious degree. May God 
grant, we may be able to gratify them, by establishing a 
wise and just Government. For my own part, I never before 
felt myself in such a situation; and declare I would not, 
upon pecuniary motives, serve in this Convention for a 
thousand pounds per day. The revolt from Great Britain 
and the formations of our new Governments at that time, 
were nothing compared to the great business now before us. 
There was then a certain degree of enthusiasm, which in- 
spired and supported the mind; but to view through the 



SATURDAY, JUNE 2, 1787 181 

calm, sedate medium of reason the influence which the estab- 
lishment now proposed may have upon the happiness or 
misery of millions yet unborn, is an object of such magnitude, 
as absorbs, and in a manner suspends, the operations of the 
human understanding. . . . All communications of the 
proceedings are forbidden during the sitting of the Conven- 
tion ; this I think was a necessary precaution to prevent mis- 
representations or mistakes ; there being a material differ- 
ence between the appearance of a subject in its first crude 
and undigested shape, and after it shall have been properly 
matured and arranged." 

SATURDAY, JUNE 2, 1787 

IN CONVENTION 

Two of the subjects which gave rise to the greatest 
differences of opinion and the greatest variety of votes 
throughout the Convention were discussed on this day 
the mode of election and term of office of the Execu- 
tive. As these were debated later on, it will be more 
convenient to describe the attitude of the delegates in 
connection with a subsequent date (July 26). 

OUT OF CONVENTION 
Washington noted : l 

"Major Jenifer coming in with sufficient powers for the 
purpose (authorizing one member to represent it) added 
another State (now eleven) gave a representation to Mary- 
land ; which brought all the States in the Union into Con- 
vention, except Rhode Island, which had refused to send 
delegates thereto. Dined at the City Tavern with the Club 
and spent the evening at my own quarters." 

Dr. Benjamin Rush wrote, this day, to Richard Price 
in London : 2 

1 James McHenry had arrived from Maryland* May 28, and left June 1. Jeni- 
fer now took his place as the sole representative of that State. 

2 Mass. Hist. Soc. Proc., Second Series, XVII, 367. 



182 THE EXECUTIVE; THE JUDICIARY 

"I have set down with great pleasure to inform you that 
eleven States have this day been represented in the Conven- 
tion now assembled in this city for the purpose of revising 
the Federal Constitution. A delegation is expected in a 
few days from the twelfth. Rhode Island is destined to all 
the distress and infamy that can arise from her total separa- 
tion from the Confederacy. Her insignificance in point of 
numbers, strength, and character render this event of no con- 
sequence to the general interests of the Union. Dr. Frank- 
lin exhibits daily a spectacle of transcendant benevolence 
by attending the Convention punctually, and even taking 
part in its business and deliberations. He says 'it is the 
most august and respectable Assembly he ever was in in his 
life,' and adds, that he thinks 'they will soon finish their 
business, as there are no prejudices to oppose, nor errors to 
refute in any of the body.' Mr. Dickinson (who is one of 
them) informs me that they are all united in their object 
and he expects they will be equally united in the means of 
attaining them. . . . You must not be surprised if you 
should hear of our new system of Government meeting with 
some opposition. There are in all our States little characters 
whom a great and respectable Government will sink into 
insignificance. These men will excite factions among us, 
but they will be of a temporary duration. Time, necessity, 
and the gradual operation of reason will carry it down, and 
if these fail, force will not be wanting to carry it into execu- 
tion, for not only all the wealth, but all the military men of 
our country (associated with the Society of the Cincinnati) 
are in favor of a wise and efficient Government. The order 
of nature is the same in the political as it is in the natural 
world good is derived chiefly from evil. We are travel- 
ling fast into order and National happiness. The same 
enthusiasm now pervades all classes in favor of Government 
that actuated us in favor of liberty in the years 1774 and 
1775, with this difference, that we are more united in the for- 
mer than we were in the latter pursuit. When our enemies 
triumph in our mistakes and follies, tell them that we are 
men, that we walk upon two legs, that we possess reason, 
passions, and senses, and that under these circumstances, 



SUNDAY, JUNE 3, 1787 183 

it is as absurd to expect the ordinary times of the rising and 
setting of the sun will be altered, so as to suppose we shall 
not finally compose and adopt a suitable form of Government 
and be happy in the blessings which are usually connected 
with it." 

The secrecy of the Convention was commented on in 
a Philadelphia despatch published in many news- 
papers : l 

"Such circumspection and secrecy mark the proceedings 
of the Federal Convention that the members find it difficult 
to acquire the habits of communication even among them- 
selves ; and are so cautious in defeating the curiosity of the 
publick that all debate is suspended on the entrance of their 
own inferior officers. Though we readily admit the pro- 
priety of excluding an indiscriminate attendance on the dis- 
cussion of this deliberative council, it is hoped that the 
privacy of this transaction will be an additional motive for 
despatch, as the anxiety of the people must be necessarily 
increased by every appearance of mystery in conducting this 
important business." 

A New York despatch quoted in the Philadelphia 
press at this time said : 

"It is most undoubted that the several States have dele- 
gated their wisdom to this august body. ... If so, what 
have we now to do, but hope for the chiefest good, as politi- 
cally accountable beings a pure and adequate, republican, 
Federal Constitution. No pains shall be spared to procure 
the debates and resolutions of the Convention for the inspec- 
tion of the public as soon as any of them transpire." 

SUNDAY, JUNE 3, 1787 

Washington noted : 

"Dined at Mr. Clymer's and drank tea there also." 

1 See New York Journal, June 7; Boston Gazette, June 11; Salem Mercury, 
June 12 ; Virginia Independent Chronicle, June 20, 1787. 



184 THE EXECUTIVE; THE JUDICIARY 

On this day, Nathaniel Gorham, one of the Massa- 
chusetts delegates, wrote to Nathan Dane, a Member 
of Congress from Massachusetts : l 

"We have now eleven States and have been every day 
last week in a Committee of the Whole, in which to sound 
the sentiment of each other. Several propositions relative 
to a General Government have been submitted. The busi- 
ness was opened by Govr. Randolph of Virginia in an able 
manner, and I think there is a prospect that the Convention 
will agree in a pretty good plan. It is not easy to meet with 
any Boston newspapers here. I will therefore thank you to 
inclose to me those that you get, after you have read them. 
I do not know that I am at liberty to mention in any man- 
ner what the Convention has done ; but to you in confidence 
I can say that they have agreed, I believe, unanimously, 
that there ought to be a National Legislative, Executive, 
and Judiciary." 

Jeremiah Wadsworth of Connecticut wrote, this day, 
to Rufus King, another Massachusetts delegate, an 
interesting comment on the delegates chosen by Con- 
necticut (the last of whom, Dr. William S. Johnson, had 
only the day before) arrived in Philadelphia : 2 

"I am satisfied with the appointments except Sherman, 
who, I am told, is disposed to patch up the old scheme of Gov- 
ernment. This was not my opinion of him, when we chose 
him ; he is cunning as the Devil, and if you attack him, you 
ought to know him well ; he is not easily managed, but if he 
suspects you are trying to take him in, you may as well catch 
an eel by the tail. Our Genl. Assembly will finish this week 
without making paper money or Tender Act. Our unf ederal 

1 Nathan Dane Papers M8S. in Library of Congress. 

a The Independent Gazetteer of May 19 noted the choice of delegates by the Con- 
necticut Legislature on May 10, 1787, "after a debate of two hours." Johnson, 
Ellsworth, and Erastus Wolcott were chosen. Sherman was later appointed in 
place of Wolcott. 

William Grayson, a Member of Congress from Virginia, wrote, June 3, from New 
York to General Washington introducing Dr. Johnson "a gentleman of great abili- 
ties and worth and who has been lately appointed one of the Convention. I am 
very happy to hear you have recovered your health." Washington Papers MSS. 



MONDAY, JUNE 4, 1787 185 

party will lose ground. I am persuaded a good Govern- 
ment is wished for by the majority of our House of Assembly 
but whether the people at large will be prepared to receive 
such an one as you and I wish, is uncertain ; but I hope the 
Convention will be united in something that is not so totally 
unfit for our purposes as the present system, for I consider 
that at an end." 

MONDAY, JUNE 4, 1787 

IN CONVENTION 
The Veto Power 

Having agreed to a single Executive, and having 
agreed to vest in the Executive two powers, viz. : to 
execute the laws and to appoint all officers except 
Judges, the Committee now took up Randolph's 
Resolutions which gave to the Executive (in conjunc- 
tion with the Judiciary) power to negative or veto 
Acts of the National Legislature, subject, however, to 
repassage. Elbridge Gerry of Massachusetts now 
proposed as a substitute, and in order to eliminate the 
Judiciary from any participation in the function, that 
"the National Executive shall have a right to negative 
any Legislative act, which shall not be afterwards 
passed by parts of each branch of the National 

Legislature." This proposed power of veto was an 
extraordinary circumstance; for no power of the 
Royal Governors had been more unpopular, and in 
framing their own Constitutions, only three States 
Massachusetts, South Carolina, and New York had 
seen fit to grant such a veto power to their Governors. 
In eight States, the Legislature alone was concerned in 
enacting statutes. 1 The alarm felt by many of the 
delegates at the unjust and improper laws which such 
uncurbed State Legislature had been passing accounted 
for their willingness to accept the veto. "It was an 

1 See A Short History of the Veto, Elliot's Debates, IV, 620-626. 



186 THE EXECUTIVE; THE JUDICIARY 

important principle, in this, and in the State Con- 
stitutions, to check Legislative injustice and incroach- 
ments," said Madison. "The experience of the States 
had demonstrated that their checks are insufficient." 1 
James Wilson and Alexander Hamilton went so far as 
to advocate giving to the Executive an absolute veto, 
not subject to be overridden by any vote of the Legis- 
lature, Wilson saying that: "He believed as others 
did that this power would seldom be used. The 
Legislature would know that such a power existed and 
would refrain from such laws as it would be sure to 
defeat. Its silent operation would, therefore, preserve 
harmony and prevent mischief." But Franklin, Sher- 
man, Pierce Butler of South Carolina, and Mason were 
opposed to any absolute veto; for if it be given, said 
Mason, "we are not indeed constituting a British 
Government, but a more dangerous monarchy, an elec- 
tive one." Gunning Bedford of Delaware opposed any 
form of veto, saying: "The representatives of the 
people were the best judges of what was for their 
interest and ought to be under no external control 
whatever. The two branches would produce a suf- 
ficient control within the Legislature itself." The 
proposal for an absolute veto was defeated, as was a 
substitute motion, made by Butler and seconded by 
Franklin, that the Executive have power to suspend 
an act of the Legislature for a specified time. There- 
upon, Gerry's motion that the Executive be given a 
revisionary check on the laws unless overruled by 
two-thirds of each branch of the Legislature (as pro- 
vided in the Massachusetts State Constitution), was 
accepted by a vote of eight States to two (Connecticut 
and Mary land alone dissenting). 

In Randolph's original Resolution, there was a 
provision for joining the Judiciary with the Executive 

1 Madison, Sept. 12, 1787. 



MONDAY, JUNE 4, 1787 187 

in this power to reject Acts of the National Legislature. 
The grant to the Judiciary of such a function was now 
defeated on this day, and three renewals of this proposal 
on June 6, July 21, and August 15, were likewise 
defeated (as discussed infra under date of July 18). l 
The general opinion of the delegates was that it was 
improper to join the Judges in this veto power,' since the 
question of the constitutionality of an Act of Congress 
might come up before them later in their judicial 
capacity, and they ought not to be given opportunity 
to pass twice on such an Act, once in a Legislative or 
Executive capacity, and once Judicially. Moreover, 
this veto power was to be exercised not only in case of 
unconstitutional laws, but in case of laws felt to be 
oppressive or unwise, and as to objections based on 
such latter grounds, the Judges were not qualified to 
act. The vote of the Committee granting the veto 
power to the Executive subject to overruling by a two- 
thirds vote of Congress was accepted by the Con- 
vention on July 18, without dissent. 

OUT OF CONVENTION 
Washington noted : 

"Attended Convention. Representation as on Saturday. 
Reviewed (at the importunity of Genl. Mifflin and the offi- 
cers) the Light Infantry, Cavalry and part of the artillery 
of the City. Dined with Genl. Mifflin and drank tea with 
Miss Cadwallader." 

In the newspapers, the review was thus described : 2 

"On Monday afternoon, the Light Infantry of the re- 
spective battallions of Philadelphia militia, the City Light 

1 Jefferson, writing to Francis Hopkinson, as late as March 13, 1789, said that 
he approved of "the qualified negative on laws given to the Executive which, more- 
over, I should have liked better if associated with the Judiciary also, as in New 
York." 

2 Pennsylvania Journal, June 9 ; Pennsylvania Herald, June 9 ; Freeman* s 
Journal, June 6; AV York Journal, June 14, 1787. Hector Jean de Crevecoeur 



188 THE EXECUTIVE; THE JUDICIARY 

Dragoons and a detachment of the Artillery in full uniform 
and well accoutred, under the orders of Col. Read and Col. 
Mentzes, inspector of the militia were reviewed on the com- 
mons near this city by his Excellency General Washington, 
Generals Mifflin and Pinckney and several members of the 
Convention. The usual maneuvres were performed with 
alertness and regularity, much to the satisfaction of the 
Generals, as well as to a vast concourse of respectable inhab- 
itants who assembled on that occasion. In the evening, the 
troops marched into the city in great order and were dis- 
missed before his Excellency's Quarters, at the House of the 
Honorable Robert Morris, Esq., in Market Street." 

It would appear, however, from the evidence of others 
that the success of the review was greatly impeded by 
the pressure of the populace to see Washington. " Such 
is the veneration and love which the presence of this 
great man inspires that it was not possible for him to 
review the fine militia of Philadelphia, as he had been 
asked, so great was the crowd which unceasingly sur- 
rounded him and wished to see and talk with him. It 
is upon tender and profound attachment that people 
found their hope that the plans which the Convention 
shall propose will be unanimously approved and 
ratified by the States" so wrote Jean de Cr&vecoeur, 
the French traveller. And the Herald said that while 
"the business of the day was conducted greatly to the 
satisfaction of this judge of military merit, it is to be 
regretted that the desire of the populace to gaze upon 
their beloved General rendered his situation in some 
degree, uncommodious and impaired the effect of the 

to Due de Rochefoucauld, Copies of Crevecaeur Letters MSS in Library of Con- 
gress. 

The diary of Jacob Hiltzheimer, quoted in Washington, After the Revolution 
(1808), by William Spohn Baker said: "In the evening, my wife and I went to 
Market Street gate to see that great and good man, General Washington. We 
had a full view of him and Major Jackson who walked with him, but the number of 
people who followed him on all sides was astonishing. He had been out on the 
field to review Captain Samuel Miles, with his Troop of Horse, the light infantry 
and artillery." 



TUESDAY, JUNE 5, 1787 189 

maneuvres. This inconveniency, however, can require 
but little excuse when we consider the motives that 
produced it and find the natural curiosity of the people 
sanctified by veneration and gratitude." 

TUESDAY, JUNE 6, 1787 

IN CONVENTION 

The subjects of the Judiciary and of Ratification of 
the new Constitution were settled by the Committee in 
a preliminary way (as to which, see discussion under 
dates of July 18 and July 23). 

OUT OF CONVENTION 
Washington noted : 1 

"Dined at Mr. Morris's with a large company and spent 
the evening there. Attended in Convention the usual 
hours." 

The Gazetteer reprinted an article from a New York 
paper on the need of the women to work for the Con- 
stitution : 2 

"... It is the duty of the American ladies in a particular 
manner to interest themselves in the success of the measures 
that are now pursuing by the Federal Convention for the 
happiness of America. They can retain their rank as 
rational beings only in a free government. In a monarchy 
(to which the present anarchy in America, if not restrained 
must soon lead us) they will be considered as valuable mem- 
bers of society only as they are capable of being mothers for 
soldiers who are the pillars of crowned heads. It is in their 
power, by their influence over their husbands, brothers and 
sons, to draw them from those dreams of liberty under a 
simple democratical form of government, which are so 
unfriendly to that order and decency of which nature has 

1 On succeeding days, when no entry is made in this book from Washington's 
diary, it is to be assumed that he merely recorded attendance in Convention, drink- 
ing tea and dining at Mr. Morris*. 

2 See also Salem Mercury, June 19, 1787. 



190 THE EXECUTIVE; THE JUDICIARY 

made them such amiable examples. ... As the miseries 
of slavery will fall with particular weight upon them, they 
are certainly deeply interested in the establishment of such 
a government as will preserve our liberties, and thereby pre- 
serve the rank, the happiness, the influence, and the char- 
acter in society for which God intended them." 

WEDNESDAY, JUNE 6, 1787 

IN CONVENTION 

On this day, as before noted, the Committee voted 
for election of the first branch of the Legislature by the 
people, and for a second time refused to join the Judges 
with the President in power to veto legislation. 

OUT OF CONVENTION 
Washington noted : 

"In Convention as usual. Dined at the President's (Doc- 
tor Franklin) and drank tea there. After which retired to 
my lodgings and wrote letters for France." 

Dr. William Samuel Johnson in a diary containing 
brief items (chiefly as to the weather), which he kept 
throughout the Convention noted : 1 

"Very Rainy. In Convention. Dined Dr. Franklin's." 

The Journal reprinted a New York article on the 
necessity of free discussion of the Constitution by the 
newspapers : 2 

"It is not more essential to freedom, says a correspondent, 
that the press should be unrestrained in its production than 
that the circulation of its productions should be uninter- 
rupted and universal. The strong, invidious distinction 

'See Records of the Federal Convention (1911), by Max Farrand, III, 552-554. 
The first two entries in this diary are as follows : "June 1. Rain and fair. Came 
to Philadelphia at 7 o'clock and lodged at DickensorTs." 

"June 2. Made visits. Took a seat in Convention. ... In evening, took 
lodgings at City Tavern." 

2 See also Pennsylvania Packet, June 6 ; Virginia Independent Chronicle, June 
20, 1787. 



WEDNESDAY, JUNE 6, 1787 191 

which different habits, manners and pursuits will naturally 
create between the Eastern and Southern inhabitants of so 
extensive an empire can be only counteracted by the freeest 
communication of the opinions and politics, and at this awful 
moment when a Council is convened, it may be justly said, 
to decide the fate of the Confederation, would it not be dan- 
gerous and impolitic to divert or destroy that great channel 
which serves at once to gratify the curiosity and collect the 
voice of the people? The Grand Convention will certainly 
be of the highest importance to the political existence and 
welfare of the United States. To revise the Confederation 
and to fall upon a system of commercial regulations which 
upon the whole may tend to the revival and establishment 
of our credit and the encouragement of our trade and manu- 
factures are objects of such magnitude as require the united 
wisdom of the continent and from the respectable names 
of the gentlemen deputed to this arduous business we have 
reason to be assured the greatest exertions will be made and 
the best measures adopted to render the Constitution of the 
Foederal Government adequate to the exigencies of the 
Union/' 

Edmund Randolph wrote this day to Lieutenant 
Governor Beverly Randolph that "the prospect of a 
very long sojournment here has determined me to 
bring up my family." He then added a statement 
which conditions in the Convention hardly seemed to 
warrant : "We have every reason to expect harmony 
in the Convention, altho the currents of opinion are 
various. But no man can yet divine in what form our 
efforts against the American crisis will appear to the 
public eyes. It will not be settled in its principles for 
perhaps some weeks hence." 1 Arthur Lee, then a 
Member of Congress, wrote from New York, this day, 
to John Rutledge that the representation of the United 
States in Convention was "much more complete than 
was expected", but that in New York, "hitherto 

1 Calendar of Virginia State Papers, IV, 293. 



192 THE EXECUTIVE; THE JUDICIARY 

nothing has transpired touching their deliberations." 1 
Madison wrote, this day, to William Short that all 
hopes were centered on the Convention : 

"The Convention has been formed about 12 days. It 
contains in several instances the most respectable characters 
in the U. S., and in general may be said to be the best con- 
tribution of talents the States could make for the occasion. 
What the result of the experiment may be is among the 
arcana of futurity. Our affairs are considered on all hands 
as at a most serious crisis. No hope is entertained from the 
existing Confederacy. And the eyes and hopes of all are 
turned towards this new Assembly. The result, therefore, 
whatever it may be, must have a material influence on our 
destiny, and on that of the cause of republican liberty. The 
personal characters of the members promise much. The 
spirit which they bring with them seems in general equally 
promising. But the labor is great indeed, whether we con- 
sider the real or imaginary difficulties within doors or with- 
out doors." 

To Jefferson in Paris, Madison wrote that: "The 
names of the members will satisfy you that the States 
have been serious in this business. The attendance of 
General Washington is a proof of the light in which he re- 
gards it. The whole community is big with expectation ; 
and there can be no doubt that the result will in some 
way or other have a powerful effect on our destiny." 

Washington wrote to La Fayette : 

"... You will, I dare say, be surprised, my dear Marquis, 
to receive a letter from me at this place. You will probably 
be more so when you hear that I am again brought, contrary 
to my public declamation and intention, on a public theatre. 
Such is the vicissitude of human affairs, and such the frailty 
of human nature, that no man, I conceive, can well answer 
for the resolution he enters into. The pressure of the public 
voice was so loud, I could not resist the call to a Convention 
of the States which is to determine whether we are to have a 

Life of Arthur Lee (1829), by R. H. Lee. 



THURSDAY, JUNE 7, 1787 193 

Government of respectability under which life, liberty and 
property will be secured to us, or are to submit to one which 
may be the result of chance or the moment, springing per- 
haps from anarchy and confusion, and dictated perhaps by 
some aspiring demagogue who will not consult the interest 
of his country so much as his own ambitious views. What 
may be the result of the present deliberation is more than 
I am able, at present, if I was at liberty, to inform you, and 
therefore I will make this letter short. ..." 

THURSDAY, JUNE 7, 1787 

IN CONVENTION 
Election of the Senate by State Legislatures 

The small States, having lost their fight against 
popular election of the first branch of the Legislature, 
now made a stand for election of the second branch, 
the Senate, by the State Legislatures. 

In considering the place of the Senate in the scheme 
of the new Government, it is important to bear in mind 
a fact which is often overlooked namely, that the 
original idea of a Senate was not that this branch should 
represent the States, while the House represented the 
people. That function of the Senate was occasioned 
by the Great Compromise by which the States secured 
equality of representation in one branch of the Legis- 
lature. Nor was the Senate established to be a body 
peculiarly representing property, as was the case with 
the State Senates, under the various State Constitu- 
tions which required high property qualifications for 
Senators and for those who voted for them; for 
though Madison, Gerry, Mason, and a few others 
thought that the Senate should represent wealth, the 
Convention expressly refused to adopt this idea, and 
voted against any property qualification. 1 

1 See August 10, 1787. Gerry, on June 7, favored election of the Senate by the 
State Legislatures in order to protect the "commercial and monied interest" against 



194 THE EXECUTIVE; THE JUDICIARY 

The actual theory on which the Senate was estab- 
lished was that there might be a body which should 
act as a check or curb on the House. It was expressed 
in homely fashion in the anecdote of the conversation 
between Jefferson and Washington when breakfasting 
together on the former's return from France. In 
answer to Jefferson's inquiry why a Senate was agreed 
to, Washington asked: "Why did you pour that 
coffee into your saucer?" "To cool it," replied Jef- 
ferson. "Even so," said Washington, "we pour 
legislation into the Senatorial saucer to cool it." 1 This 
was the theory which John Adams had urged, eleven 
years prior,' when the States were about to form their 
own Constitutions in 1776, and which he had set forth 
in great detail in his book published in the spring of 
1787. The statements made by delegates throughout 
the Convention show very clearly their views as to this 
function of the Senate. 2 Thus, Edmund Randolph 
said at the outset that the Senate should be smaller 
than the House, and "so small as to be exempt from 
the passionate proceedings to which numerous assem- 
blies are liable" ; that the origin of evils under which 
the United States labored were to be found "in the 
turbulence and follies of democracy", and that a good 
Senate seemed most likely to answer the purpose of a 
"check against this tendency of our Governments." 
And again, Randolph said that the object of the 
Senate was "to controul the democratic branch" ; also 

the people at large, whom he described as "chiefly composed of the landed inter- 
ests/' Madison said that "the Senate should come from and represent the wealth 
of the Nation." (See King's Notes.) Mason, on June 26, said that "one important 
object in constituting the Senate was to secure the rights of property." Baldwin, 
on June 29, said that he thought the Senate "ought to be the representation of 
property, and that in forming it, therefore, some reference ought to be had to the 
relative wealth of their constituents and to the principles on which the Senate of 
Massachusetts was constituted." 

l Farrand, III, 359. 

2 Randolph, May 31, June 12; Madison, June 7, 27; Ellsworth, June 25; 
Mason, June 46: G. Morris, July 2. 19; C. Pincknev. Aug. 14; Carroll, Aug. 14,; 
Gorham. An*. 24. 1787. 



THURSDAY, JUNE 7, 1787 195 

that "a firmness and independence may be the more 
necessary in this branch, as it ought to guard the 
Constitution against encroachments of the Executive 
who will be apt to form combinations with the dema- 
gogues of the popular branch." Madison said that 
"the use of the Senate is to consist in its proceeding 
with more coolness, with more system, and- with more 
wisdom than the popular branch" ; and again, he said 
that its purpose was to give "stability" to the Govern- 
ment; and again, he said that, as one of the ends of 
Government was "to protect the people against the 
transient impressions in which they themselves might 
be led ... an obvious precaution against this danger 
would be to divide the trust between different bodies of 
men who might watch and check each other." The 
Government, he said, should be so constituted "as that 
one of its branches might have an opportunity of 
acquiring competent knowledge of the public inter- 
ests"; and, as a numerous body of Representatives 
"were liable to err also from fickleness and passion, a 
necessary fence against this danger would be to select 
a portion of enlightened citizens whose limited number 
and firmness might seasonably interpose against im- 
petuous councils. . . . One great end of the 
institution was that, being a firm, wise and impartial 
body, it might give . . . stability to the General 
Government." Ellsworth of Connecticut, one of the 
leaders in the Great Compromise, said that "wisdom 
was one of the characteristics which it was in contem- 
plation to give the second branch." G. Morris said : 
"What is this object? To check the precipitation, 
changeableness and excesses of the first branch." And 
again, he said that it was intended as "a check on the 
abuse of lawful powers" by the House. Charles Pinck- 
ney of South Carolina said that: "The Senate 
might be supposed to contain the fittest men. He 



196 THE EXECUTIVE; THE JUDICIARY 

hoped to see that body become a school of public 
Ministers, a nursery of statesmen." Carroll of Mary- 
land, replying to his colleague, Martin, who said that 
"the Senate is to represent the States, " stated : "The 
Senate was to represent and manage the affairs of the 
whole, and not to be the advocates of State interests." 
And, said Gorham : "It was wrong to be considering 
at every turn whom the Senate would represent. The 
public good was the true object to be kept in view." 

In this debate on June 7, there was comparatively 
little opposition to election of the Senate by the State 
Legislatures. The Convention evidently considered 
it reasonable to make this concession to the adherents 
of State Sovereignty, especially since the crucial 
question of the proportion in which the States should 
be represented in the Senate was not involved in this 
vote. Hence, though Madison and Wilson continued 
to the end to argue in favor of founding the whole 
Government directly on the people, in both branches 
of the Legislative Department, as well as in the Execu- 
tive, the motion for election of a Senate by State 
Legislatures (made by Dickinson of Delaware and 
Sherman of Connecticut) was carried, by a unanimous 
vote. When the Convention considered this vote of 
the Committee of the Whole, on June 25, it adopted it 
after some debate by a vote of 9 States to 2 (Virginia 
and Pennsylvania, led by Madison and Wilson, dissent- 
ing). 

OUT OF CONVENTION 
Washington noted : l 

. "Attended Convention as usual. Dined with a Club of 
Convention members at the Indian Queen. Drank tea and 
spent the evening at my lodgings." 

1 The Indian Queen Tavern, at which many of the delegates boarded, was on 
Fourth St., above Chestnut Street. It was later known as the Francis Hotel. Dr. 



THURSDAY, JUNE 7, 1787 197 

Joseph Jones wrote to Madison from Richmond, 
referring to the prospect of enhancement of value of 
Continental securities, through the adoption of an 
adequate form of government, and also to the fact 
that the State Governments were purchasing such 
securities : l 

"I entertain hopes, from the disposition of the members 
convened, that harmony will prevail and such improvements 
of the Foederal system adopted as will afford us a prospect 
of peace and happiness. I am, however, strongly impressed 
with fears that your labours in Convention, though wisely 
conducted and concluded, will, in the end, be frustrated by 
some of the States, under the influence of interests operating 
for particular rather than general welfare. Be this as it may, 
I cannot doubt but the meeting in Philadelphia will (com- 
posed as it is of the best and wisest persons in the Union) 
establish some plan that will be generally approved. . . . 
A letter from Mr. A. Lee which the Governor has sent us 
intimates the propriety of proceeding without delay (if the 
Executive have any money at their command) to purchase 
up Continental securities which are now low, but which he 
seems to think will (if the Convention do anything that will 
probably meet the approbation of the States, and the sales 
of the lands by Congress take place) rapidly rise in value. 
He says also that other States are doing this while it is to be 
effected on easy terms. I wish for information as to the 
fact, and your sentiments so far as you conjecture respecting 
the rise of the value of these papers." 

Johnson recorded in his diary, this day: "June 7. Showery. In Convention. 
Dined Mr. Clymer's." 

On the next day, June 8, Jacob Hiltzheimer recorded in his diary : " In the 
morning, I called on General Pinckney from South Carolina and showed him two 
bay geldings, now in his carriage, six years old. . . . The General agreed to take 
them, price 55 pounds each.'* 

1 Letters of Joseph Jones, 1777-1787 (1889) . As to these letters, see Worthington 
C. Ford, in Mass. Hist. Soc. Proc., Second Series (1901). XV. 116 et seq. 



198 THE EXECUTIVE; THE JUDICIARY 
FRIDAY, JUNE 8, 1787 

IN CONVENTION 

On this day, the power of the National Legislature 
to negative State laws was again debated (as discussed 
under a subsequent date, July 17). 

OUT OF CONVENTION 

On this day, the Herald published a purported action 
of the Convention as to Rhode Island ; but the story 
was absolutely untrue : 

"We are informed that the Federal Convention, among 
other things, has resolved that Rhode Island should be con- 
sidered as having virtually withdrawn herself from the 
Union, and that the right of emitting paper money by the 
States jointly or severally ought to be abrogated. It is pro- 
posed in the first case that for the proportion of the federal 
debt now due from Rhode Island, she shall be held, and if 
gentler means will not avail she shall be compelled to be 
responsible, but upon no account shall she be restored to her 
station in the Union. And in the other case, it is proposed 
to establish a mint for the receipt of bullion, from which the 
States are to draw coin in proportion to their respective con- 
tributions." 

That no credit should be given to reports like the 
above was urged in a letter published a fortnight later : l 

"It is a fact of public notoriety that the Members of the 
Convention ever since a quorum has been formed have 
observed the greatest secrecy in all their transactions. 
Nothing whatever of a public nature has been officially com- 
municated or transpired. Very little credit can therefore 
be given to what has hitherto appeared in the newspapers 
as to their resolves that Rhode Island should be considered 
as having withdrawn herself from the Union and shall upon 
no account be restored to her station again, and for her pro- 

1 Philadelphia despatch dated June 22, in Connecticut C our ant, July 2, 1787 ; 
aee also New York Daily Advertiser, June 27, New York Packet, June 15, New Jersey 
Journal, June 18, 1787. 



SATURDAY, JUNE 9, 1787 199 

portion of the federal debt, if gentler means will not avail, 
she shall be compelled to be responsible the abrogation 
of paper emissions and the establishment of a mint for the 
receipt of bullion, etc. The mere idle reports of busy bodies 
and the absurd foolish suggestions of idle pretenders are not 
to be viewed and considered as the real and regular proceed- 
ings of the Convention." 

Gen. Henry Knox of Massachusetts wrote, this 
day, to Rufus King that: "It is the Convention to 
whom the thinking part of the community are looking 
up for a good form [of government]. God grant that 
they may not be disappointed." 

SATURDAY, JUNE 9, 1787 

IN CONVENTION 

On this day, the Committee for a second time 
struggled with the question how the National Executive 
should be chosen, but came to no final conclusion. 
There then loomed up a dangerous subject which, it 
was early foreseen, might be the rock on which the 
Convention might split. On the first day of debate, 
May 30, Madison, seconded by Gouverneur Morris, 
had moved: "That the equality of suffrage estab- 
lished by the Articles of Confederation ought not to 
prevail in the National Legislature and that an 
equitable ratio of representation ought to be sub- 
stituted." This had raised the question whether the 
old equality of suffrage of the States which prevailed 
in the Congress of the Confederation should be con- 
tinued or be abandoned. The Committee of the 
Whole had not been ready to struggle with so funda- 
mental a subject. On this June 9, it could no longer 
be avoided. Paterson of New Jersey said that the 
Resolution for a proportional representation struck at 
the very existence of the lesser States ; he pointed out 
that it would place the control of the new Government 



200 THE EXECUTIVE; THE JUDICIARY 

entirely in the hands of the three large States 
Virginia, Massachusetts, and Pennsylvania; and he 
concluded by saying hotly: "New Jersey will never 
confederate on the plan before the Committee. She 
would be swallowed up. He had rather submit to a 
monarch, to a despot, than to such a fate. He would 
not only oppose the plan here, but on his return home 
do everything within his power to defeat it there/' 
To this, Wilson then retorted: "Shall New Jersey 
have the same right or influence in the councils of the 
Nation with Pennsylvania ? I say no. It is unjust I 
never will confederate on this plan. The gentleman 
from New Jersey is candid in declaring his opinions. 
I commend him for it. I am equally so, I say again 
I never will confederate on his principle. If no State 
will part with any of its sovereignty, it is vain to talk 
of a National Government." l At the end of this heated 
discussion, Paterson wisely moved to postpone the 
decision. Luckily, a Sunday was to intervene, during 
which the delegates had an opportunity to cool off. 
It is apparent that all appreciated the fact that a crisis 
had arrived, and that the considered thought of this 
Sunday might determine whether the Convention was 
to continue or to break upon this rock. 2 

OUT OF CONVENTION 
Washington noted : 

"At Convention. Dined with the Club at the City Tav- 
ern. Drank tea and set till 10 o'clock at Mr. Powell's." 

1 Robert Yates in his Notes reported Wilson, as above quoted, and Paterson, as 
follows : " I will never consent to the present system and I shall make all the inter- 
est against it in the State which I represent that I can. Myself or my State will 
never submit to tyranny or despotism." 

Francis N. Thorpe, in his Constitutional History of the United States (1901), I, 
353, says : "No day of the long summer session was filled with more anxiety than 
the following Sunday, the tenth of June, for it was uncertain whether the members 
had not met in vain. The great question of representation was to come up on Mon- 
day and the discussion had already become threatening." 



SATURDAY, JUNE 9, 1787 201 

On this momentous day, Luther Martin, a delegate 
from Maryland, who was destined to be the strongest 
opponent of the new Constitution in the Convention, 
arrived in Philadelphia. He later wrote the following 
interesting account of his initial steps. 1 "It was 
Saturday that I first took my seat. I obtained that 
day a copy of the propositions that had been laid before 
the Convention and which were then the subject of 
discussion in a Committee of the Whole. The Secre- 
tary was so polite as, at my request, to wait upon me 
at the State House the next day (being Sunday) and 
there gave me an opportunity of examining the Journals 
and making myself acquainted with the little that had 
been done before my arrival. I was not a little sur- 
prised at the system brought forward, and was solicitous 
to learn the reasons which had been assigned in its 
support ; for this purpose the Journals could be of no 
service ; I therefore conversed on the subject with 
different members of the Convention, and was favored 
with minutes of the debates which had taken place 
before my arrival. I applied to history for what lights 
it could afford me, and I procured everything the most 
valuable I could find in Philadelphia on the subject of 
government in general, and on the American Revo- 
lution and governments in particular. I devoted my 
whole time and attention to the business in which we 
were engaged, and made use of all the opportunities I 
had and abilities I possessed, conscientiously to decide 
what part I ought to adopt in the discharge of the sacred 
duty I owed to my country, in the exercise of the trust 
you had imposed upon me. I attended the Convention 
many days without taking my share in the debates, 
listening in silence to the eloquence of others, and 

1 Maryland Journal, March 18, 1788; see also ibid., March 7, 1788 : "The first 
thing I did after taking my seat was to carefully examine the Journals for informa- 
tion of what had already been done or proposed. I was also furnished with notes 
of the debates which had taken place " 



202 THE EXECUTIVE; THE JUDICIARY 

offering no proof that I possessed the powers of speech 
than giving my yea or nay when a question was 
taken/' 

Edward Carrington, a Member of Congress from 
Virginia, wrote from New York, this day, to Thomas 
Jefferson : 

"The proposed scheme of a Convention has taken more 
general effect and promises more solid advantages than was 
at first hoped for. All the States have elected representa- 
tives except Rhode Island, whose apostasy from every moral, 
as well as political, obligation has placed her perfectly with- 
out the views of her confederates ; nor will her absence or 
nonconcurrence, occasion the least impediment in any stage 
of the intended business. . . . The commissions of these 
gentlemen go to a thorough reform of our Confederation 
some of the States, at first, restricted their deputies to com- 
mercial objects, but have since liberated them. The latitude 
thus given, together with the generality of the commission 
from the States, have doubtless operated to bring Genl. 
Washington forward, contrary to his more early determina- 
tion his conduct in both instances indicates a deep impres- 
sion upon his mind of the necessity of some material change. 
. . . Men are brought into action who had consigned them- 
selves to an eve of rest, and the Convention, as a beacon, is 
rousing the attention of the Empire. The prevailing impres- 
sion, as well in as out of Convention, is, that a Federal Gov- 
ernment adapted to the permanent circumstances of the 
country, without respect to the habits of the day, be formed 
whose efficiency shall pervade the whole Empire; it may, 
and probably will, at first, be viewed with hesitation, but 
derived and patronised as it will be, its influence must extend 
into a general adoption as the present fabric gives way. 
That the people are disposed to be governed is evinced in 
their turning out to support the shadows under which they 
now live, and if a work of wisdom is prepared for them, they 
will not reject it to commit themselves to the dubious issue 
of anarchy. The debates and proceedings of the Conven- 
tion are kept in profound secrecy. Opinions of the probable 



SATURDAY, JUNE 9, 1787 203 

result of their deliberations can only be formed from the 
prevailing impressions of men of reflection and understand- 
ing. These are reducible to two schemes the first, a con- 
solidation of the whole Empire into one Republic, leaving 
in the States nothing more than subordinate Courts for facili- 
tating the administration of the laws the second an inves- 
titure of a Foederal Sovereignty with full and independent 
authority as to the trade, revenues, and forces of the Union, 
and the rights of peace and war, together with a negative 
upon all the Acts of the State Legislatures. The first idea, 
I apprehend, would be impracticable, and therefore do not 
suppose it can be adopted general laws through a country 
embracing so many climates, productions, and manners as 
the United States would operate many oppressions, and a 
General Legislature would be found incompetent to the for- 
mation of local ones, as a majority would, in every instance, 
be ignorant of, and unaffected by the objects of legislation 
the essential rights, as well as advantages of representation 
would be lost, and obedience to the public decrees could only 
be ensured by the exercise of powers different from those 
derivable from a free Constitution. Such an experiment 
must, therefore, terminate in a despotism, or the same 
inconveniences we are now deliberating to remove. Some- 
thing like the second will probably be formed indeed I 
am certain that nothing less than what will give the Foederal 
Sovereignty a compleat controul over the State Govern- 
ments, will be thought worthy of discussion. Such a scheme, 
constructed upon well adjusted principles, would certainly 
give us stability and importance as a Nation, and if the 
Executive powers can be sufficiently checked, must be eligi- 
ble. Unless the whole has a decided influence over the 
parts, the constant effort will be to resume the delegated 
powers, and there cannot be an inducement in the Foederal 
Sovereignty to refuse its assent to an innocent Act of a State. 
The negative which the King of England had upon our laws 
was never found to be materially inconvenient." 

Benjamin Hawkins, a Member of Congress from 
North Carolina, wrote from New York to Jefferson : 



204 THE EXECUTIVE; THE JUDICIARY 

"I will only add that every citizen of the United States is 
looking up with eager, anxious hopes to the Convention for 
an efficient Government ; that the proceedings of the Con- 
vention are under such an injunction of secrecy as that 
confidential communications are inconsistent with the rules 
established as necessary to preserve the fullest freedom of 
decision and to prevent misconceptions and misconstruc- 
tions without doors." 

David Brearley, a delegate from New Jersey, wrote 
to Jonathan Dayton : 1 

"We have been in a Committee of the Whole for some time 
and have under consideration a number of very important 
propositions, none of which, however, have as yet been 
reported. My colleagues, as well as myself, are very desir- 
ous that you should join us immediately. The importance 
of the business really demands it." 

SUNDAY, JUNE 10, 1787 

Washington noted : 

"Breakfasted by agreement at Mr. Powell's and in com- 
pany with him rid to see the Botanical gardens of Mr. (Wil- 
liam) Bartram, which, tho stored with many curious pits., 
shrubs and trees, many of which are exotics, was not laid off 
with much taste nor was it large. From hence we rid to the 
Farm of one Jones, to see the effect of the plaster of Paris 
which appeared obviously great. . . . From hence we 
visited Mr. Powell's own farm, after which I went (by 
appointment) to the Hills and dined with Mr. and Mrs. 
Morris. Returned to the City abt. dark." 

On this day, the French Charge d'Affaires, Otto, who 
kept in close and accurate touch with American po- 
litical conditions, wrote to the Foreign Office in Paris 
a letter which makes it evident that some delegates had 
not been complying fully with the Secrecy Rule in their 
conversation ; for, wrote Otto : 2 

1 Studies in the History of the Federal Convention of 1787, by J. F. Jameson, Amer. 
Hist. Ass. Report (1902), I. 

* The text of the letter is here translated from the original French. 



SUNDAY, JUNE 10, 1787 205 

"The plans for reform which have been communicated 
to me since (April 10) make it possible to inform you more 
fully as to the changes which the delegates propose to intro- 
duce. ... It is rare that one is a spectator at a political 
movement more important than this and it is difficult to 
enclose in a few pages the plan which must settle the happi- 
ness, the power and the future energy of a new born empire." 

Otto then proceeded to set forth in considerable 
detail the plan to be adopted by the Convention, as he 
understood it. In general, the information given by 
him was a surprisingly accurate description of the work 
of the Convention up to this date, though there were 
some inaccuracies in his statement. The most striking 
part of his letter, however, is his description of the 
political division of opinion over the Constitution in 
this country : 

"The delegates who have communicated to me these 
different plans are determined to support them with vigor 
in the Convention. I will not repeat here the doubts which 
I have expressed elsewhere as to their success ; but it is my 
duty to submit to you my opinion as to another class of men 
whose party will be equally strong and perhaps more obsti- 
nate in the Convention. These men observe that, in the 
actual situation of affairs, it is impossible to unite under a 
single head all the members of the Confederation. Their 
political interests, their commercial views, their customs, 
and their laws are so divergent that there is not a resolve of 
Congress which is equally useful and popular in the South 
and in the North. Their jealousy seems to be an 
unsurmountable obstacle. . . . The inhabitants of the 
North are fishers and sailors; those of the Central States, 
farmers ; those of the South, planters." 

Accordingly, he said, these men urged a division of 
the country into three sections : a Confederation of 
the North New Hampshire, Massachusetts, Rhode 
Island, Connecticut, Vermont, and New York to the 



206 THE EXECUTIVE; THE JUDICIARY 

Hudson ; a Confederation of the Centre, all the coun- 
try between the Hudson and the Potomac; and a 
Confederation of the South Virginia, North Caro- 
lina, South Carolina, and Georgia. He then pointed 
out that there was another party in the United 
States which had a still different plan. This portion 
of his letter had no foundation in fact : 

"The Cincinnati, that is, the officers of the old American 
Army, are interested in the establishment of a solid Govern- 
ment, since they are all public creditors ; but, considering 
the weakness of the Congress and the impossibility of being 
paid by the present Administration, they propose to throw 
the States into a single mass, and to put at their head Gen. 
Washington, with all the prerogatives and powers of a 
crowned head. They even threaten an armed revolution, as 
soon as they shall be convinced of the uselessness of the 
Convention. The plan is too extravagant to deserve the 
least discussion. The Society of the Cincinnati, which is 
formed without any public sanction, thinks now of ruling 
the political field, without having been empowered by the 
people ; but it is too weak and too unpopular to make any 
impression." 

Otto then expressed his view : 

"A fourth party, and perhaps the one which will triumph 
over all the others, proposes to leave things as they are. 
The State of Rhode Island, the Governor and principal 
administrative officers of New York, John [Samuel] Adams 
and a great number of individuals in the various States, arc 
in this party. We do not find, say they, that the situation 
of the United States is so unfortunate as people try to make 
us believe. Our cities and our population increase daily; 
our vast territories are cleared ; our commerce and industry 
grow prodigiously ; if some districts lack gold and silver, 
we give them paper in their place ; if we are not respected 
in Europe, we will not be more respected after having sac- 
rificed to a sovereign body a part of our liberty ; our foreign 
creditors will be paid when we shall have the means, and 



MONDAY, JUNE 11, 1787 207 

until then they cannot do us any harm. Why change a 
political system which has made the States prosper and 
which has no inconveniences except that of postponing pay- 
ment of our debts? A more absolute Government would 
expose us to the despotism of an aristocratic Assembly, or 
to the caprice of a single man ; for can it be imagined that 
the members of Congress, having power at will to control 
an army, a fleet and a treasury filled with the contributions 
of all the States, will be willing to return at the end of a year 
to the position of an ordinary citizen, and to exchange public 
power for private business ? It is necessary to our liberty 
that Congress should be only a simple diplomatic body and 
not a sovereign Assembly with absolute power. 

Among this grand variety of plans, it will be very difficult 
for the Convention to adopt one which will suit all parties 
and all the States. If I were allowed to have an opinion, I 
should side with those who propose to change nothing in the 
present Confederation not that I think that it would do 
justice any sooner to foreign or domestic creditors or that it 
will give more glory to the United States nor even that it 
will long preserve the union and good feeling among its mem- 
bers, but because it is more suited than any other political 
system to the minds of the people. The rich, the public 
officers, the Cincinnati are all urgent for a more absolute 
government, but their number is very small compared to the 
general mass of the citizens. " 

MONDAY, JUNE 11, 1787 

IN CONVENTION 
Method of Representation in the House 

On this day, the question being upon the rule of 
suffrage in the first branch of the Legislature, Sherman 
of Connecticut made a suggestion of a compromise, 
which, over a month later, was to prove the solution 
of the angry impasse at which the Convention had 
apparently arrived. He proposed that in the first 
branch of the Legislature (the House) the suffrage 



208 THE EXECUTIVE; THE JUDICIARY 

should be according to the respective number of free 
inhabitants of the States, and that in the second 
branch (the Senate) each State should have one vote. 
The delegates from the larger States, however, were still 
insistent that the old inequitable system of equal 
representation should be completely abolished. As a 
first step, King and Wilson now moved that in the first 
branch the right of suffrage should not be that which 
prevailed under the Confederation. 1 

It was at this point that Doctor Franklin made one 
of the characteristic speeches (read for him by Wilson) 
which proved his inestimable value in the Convention. 2 
This old man of eighty-one years, who had behind him 
a long life of useful, patriotic achievement, and of vast 
experience with human nature and mankind, possessed 
the entire confidence of the delegates. Hence, after the 
excited talk which took place on the previous Saturday, 
the following wise words of the Doctor came like a cool- 
ing breeze into the Convention : 

"It has given me great pleasure to observe that till this 
point, the proportion of representation, came before us, our 
debates were carried on with great coolness and temper. If 
anything of a contrary kind has, on this occasion, appeared, 
I hope it will not be repeated ; for we are sent here to con- 

1 Sherman had already, as early as 1776, suggested a dual system of legislation, 
partly by States and partly by proportional representation ; see Roger Sherman in 
the Federal Constitution, by L. H. Boutell, Amer. Hist. Ass. Report (1893), p. 231 ; 
Works of John Adams, II, 499 ; The Constitutional History of the United States (1901), 
by Francis N. Thorpe, I, 393. 

Bancroft states that Sherman had prepared a series of propositions (termed by 
Bancroft the "Connecticut Plan") in nine sections, for presentation to the Conven- 
tion ; but this is undoubtedly a mistake, as the document referred to by Bancroft 
was prepared prior to 1784 as a plan for amendments of the Articles of Confedera- 
tion when Sherman was in Congress. As to this, see A Bancroftian Invention, by 
Hannis Taylor, Yale Law Journal (1908), XVIII; and The Origin and Growth of 
the American Constitution (1911), by Hannis Taylor. 

2 Madison wrote to J. K. Paulding, in 1831 : "Of Franklin, I had no personal 
knowledge till we served together in the Federal Convention of 1787, and the part 
he took there has found its way to the public, with the exception of a few anecdotes 
which belong to the unveiled part of the proceedings of that Assembly. He has 
written his own life, and no man had a finer one to write or a better title to be him- 
self the writer." Writings of James Madison (Hunt's ed.), IX, 431. 



MONDAY, JUNE 11, 1787 209 

suit, not to contend with each other ; and declarations of a 
fixed opinion, and of determined resolutions never to change 
it, neither enlighten nor convince us. Positiveness, and 
warmth on one side naturally beget their like on the other ; 
and tend to create and augment discord and division in a 
great concern, wherein harmony and union are extremely 
necessary to give weight to our councils, and render them 
effectual in promoting and securing the common good." 

He, therefore, entered into a long discussion of a 
compromise, so impracticable in form as to warrant the 
suspicion that it was put forward simply to distract the 
minds of the delegates. At the end of his speech, how- 
ever, the Convention voted against equality of the 
States in the suffrage in the first branch of the Legis- 
lature. On this vote, Connecticut cast its ballots with 
the large States, in compliance with Sherman's sug- 
gestion of a compromise. 

Wilson then took a tactful step which assured the 
continued adherence of the Southern States to pro- 
portional representation; for, as a recognition of the 
fact that these States should be allowed to count their 
slaves to a certain extent in ascertaining their respective 
populations, he moved that the rule of suffrage to be 
adopted should be that proposed by the Congress of the 
Confederation, April 18, 1783, namely, in proportion to 
the whole number of white and other free citizens and 
three fifths of all others except Indians not paying 
taxes. The Committee accepted this proposal, New 
Jersey and Delaware alone dissenting. The vote of 
Delaware, by necessity, was in the negative; for the 
credentials of the delegates from that State authorized 
them to join in "devising, deliberating on, and discuss- 
ing such alteration and further provision as may be 
necessary to render the Federal Constitution adequate 
to the exigencies of the Union", but with the express 
proviso that "such alterations or further provisions or 



210 THE EXECUTIVE; THE JUDICIARY 

any of them do not extend" to altering the equal 
representation of the States provided in the Articles of 
Confederation. On the opening day of the Con- 
vention, this restriction in the Delaware credentials had 
been noticed ; and on May 30, George Read of Dela- 
ware had again called attention to the fact that he 
and his colleagues were "restrained by their commissions 
from assenting to any change of the rule of suffrage and 
in case such a change should be passed on, it might 
become their duty to retire from the Convention." 
Several members, however, had expressed their opinion 
that "no just construction of the Act of Delaware could 
require or justify a secession of her deputies", even if 
the resolution against an equal suffrage should be voted 
for by the Convention. The reasons for the insertion 
of this restriction on the powers of the Delaware dele- 
gates had been given by George Read in an interesting 
letter to John Dickinson, January 17, 1787, as follows : l 

"I conceive our existence as a State will depend upon our 
preserving such rights, for I consider the Acts of Congress 
hitherto as to the ungranted lands in most of the larger 
States, as sacrificing the just claims of the smaller and 
bounded States to a proportional share therein, for the pur- 
pose of discharging the National debt incurred during the 
war; and such is my jealousy of most of the larger States 
that I would trust nothing to their candor, generosity, or 
ideas of public justice in behalf of this State, from what has 
heretofore happened, and which, I presume, hath not escaped 
your notice. . . . Persuaded I am, from what I have seen 
occasionally in the public prints and heard in private con- 
versations, that the voice of the States will be one of the sub- 
jects of revision; and in a meeting where there will be so 
great an interested majority, I suspect the argument or ora- 
tory of the smaller State Commissioners will avail little* 
In such circumstance, I conceive it will relieve the Commis- 

1 Life and Correspondence of George Read (1870), by William T. Read, pp. 488- 
439. 



MONDAY, JUNE 11, 1787 

sioners of the State from disagreeable argumentation, as 
well as prevent the downfall of the State, which would at 
once become a cypher in the Union and have no chance of an 
accession of district or even citizens.'* 

After providing for this three fifths representation of 
the slaves in the Southern States in determining the 
basis of electing Representatives in the lower branch, 
the Convention then took up the question of the rule of 
suffrage in the upper branch. Sherman and Ellsworth 
of Connecticut moved that in the Senate each State be 
given one vote, saying that "the smaller States would 
never agree on any plan or any other principle than an 
equality of suffrage in this branch." This motion, 
however, was defeated by a vote of five States to six 
Connecticut, New York, New Jersey, Delaware, and 
Maryland supporting it. Wilson and Hamilton then 
followed up this victory of the larger States by propos- 
ing that the rule of suffrage for the Senate be the same 
as for the House; and this was voted by six States 
to five. And so the Committee, for the time being, 
disposed of this difficult subject, by providing for a 
Legislature in which both branches were to be elected, 
in proportion to the populations of the respective 
States the House, by the people, the Senate, by the 
State Legislatures. The defeat of the small States 
seemed decisive. This, however, was but the beginning 
of the fight. 

OUT OF CONVENTION 

Washington noted : 

"Attended in Convention. Dined, drank tea, and spent 
the evening in my own room (at Mr. Morris's)." 

Dr. William Samuel Johnson recorded in his diary : 
" Hot. In Convention. Dined Mr. Morris's/* 
Elbridge Gerry, a delegate from Massachusetts, wrote, 
this day, to James Monroe : 



212 THE EXECUTIVE; THE JUDICIARY 

"The Convention is proceeding in their arduous under- 
taking, with eleven States, under an injunction of secrecy. 
New Hampshire has elected members who are soon expected. 
The object of this meeting is very important in my mind. 
Unless a system of government is adopted by compact, force, 
I expect, will plant the standard ; for such an anarchy 
as now exists cannot last long. Gentlemen seem to be 
impressed with the necessity of establishing some efficient 
system and I hope it will secure us against domestic as well 
as foreign invasions." 

TUESDAY, JUNE 12, 1787 

IN CONVENTION 

On this day, the Committee of the Whole acted upon 
the Randolph Resolutions, providing for method of 
ratification of the new system, and for the term, 
qualifications, and eligibility to office of members of 
the Legislature all of which will be considered later. 
(See August 10, September 3.) 

OUT OF CONVENTION 
Washington noted : 

"Dined and drank tea at Mr. Morris's. Went afterwards 
to a concert at the City Tavern." 

William Grayson wrote from New York to Edmund 
Randolph, as to the conditions in Congress : l 

"Many of the Members of Congress are now attending 
at the Convention, and some of the States have not sent 
delegates either to the one or the other. It is much to be 
lamented that the desire of dismembering States prevails 
in so great a degree among the citizens of the Union. If a 
doctrine of this sort is allowed, it will go directly to the de- 
struction of all government ; for if the right exists in the first 
instance, it may be carried so far as to reduce a State to the 
size of a county or parish. It was a great misfortune that 
the principle was not attacked in the instance of Vermont. 

1 Catalogue of Washington-Madison Papers, in Estate of James C. McGuire. 



WEDNESDAY, JUNE 13, 1787 

They might have been crushed in the beginning, but they 
have been permitted in quietness to grow powerful and to 
furnish a fatal example to the Union. There can be no doubt 
but the United States are bound to guaranty the limits of 
every State in the Confederation. ..." 



WEDNESDAY, JUNE 13, 1787 

IN CONVENTION 

On this day, the Committee of the Whole took up the 
subject of the Judicial branch of the new Government, 
and agreed to appointment of the Judges of the Su- 
preme Court by the Senate, and to the general jurisdic- 
tion which the National Courts should exercise (as 
discussed under date of July 18). Having completed 
its consideration of Randolph's original fifteen Reso- 
lutions, with remarkably little dissension, except over 
the appointment of the Executive and the equal 
representation of the States, the Committee had now 
agreed upon a complete outline of a Federal Republic, 
differing essentially from the Confederation of States 
then in existence ; l and this outline, contained in nine- 
teen Resolutions, it reported to the Convention itself. 
Action upon the Committee's Report was postponed 
until the next day, in order to "give an opportunity for 
other plans to be proposed." 

OUT OF CONVENTION 
Washington noted : 

"In Convention. Dined at Mr. Clymer's and drank tea 
there. Spent the evening at Mr. Bingham's." 

1 On June 16, the Massachusetts Centinel said: "On the subject of the Grand 
Convention Essential alterations in our Federal Constitutions, experience, pow- 
erful experience has convinced us are wanting ; and apprehensive that these wants 
if left to themselves may operate with violence, prudent Legislatures have been 
sensible of the propriety of curing by anticipation. Accordingly, we are informed 
that the authority granted to their delegates by some States are very extensive, by 
others even general, and by all much enlarged." 



214 THE EXECUTIVE; THE JUDICIARY 

Dr. William Samuel Johnson recorded in his diary : 
" Hot. In Convention. Dined IngersoU's." 

Edward Carrington of Virginia wrote, this day, from 
New York to Madison, emphasizing the necessity that 
the Federal Government be given power to negative 
State laws. This was the favorite Virginia plan, and 
was fought for in the Convention by Madison, with 
great vigor : 

"The public mind is now on the point of a favorable turn 
to the objects of your meeting, and being fairly met with the 
result, will, I am persuaded, eventually embrace it. Being 
calculated for the permanent fitness, and not the momentary 
habits of the country, it may at first be viewed with hesita- 
tion ; but derived and patronized as it will be, its influence 
must extend into an adoption, as the present fabric gives 
way. The work once well done will be done forever, but 
patched up in accommodation to the whim of the day, it 
will soon require the hand of the cobbler again. . . . Con- 
stitute a Federal Government, invigorate and check it well ; 
give it then independent power over the trade, the revenues 
and forces of the Nation, and all things that involve any 
relationships to foreign powers ; give it also the revisal of all 
State acts. Unless it possesses a complete control over the 
State Governments, the constant effort will be to resume the 
delegated powers ; nor do I see what inducement the Federal 
sovereignty can have to negative an innocent act of a State. 
Constitute it in such shape that, its first principles being pre- 
served, it will be a good republic. I wish to see that system 
have a fair experiment. But let the liability to encroach- 
ments be rather from the Federal than the State govern- 
ments. In the first case, we shall insensibly glide into 
monarchy ; in the latter nothing but anarchy can be the 
consequence. Some gentlemen think of a total surrender of 
the State sovereignties. I see not the necessity of that measure 
for giving us National stability or consequence. The nega- 
tive of the Federal sovereignty will effectually prevent the 
existence of any licentious or inconsiderate act." 



WEDNESDAY, JUNE 13, 1787 215 

The general situation of the country in its relation to 
the Convention was described, this day, in the Mas- 
sachusetts Centinel, as follows : 

"As a Nation, these States are now arrived at a crisis 
truly alarming, perhaps more so than at any period during 
the war as then they were united and were all opposed to 
an enemy from without but now the destruction and 
calamities which threaten us spring up from among our- 
selves and by dividing will conquer us. While in the States 
individually, local and selfish principles predominate, the 
Confederated States in Congress assembled have not the 
power to apply to effect any remedy, however salutary, to 
cure our National disorder. But while there is hope, we must 
not distrust Providence, and we have this hope in the Grand 
Federal Convention. Ye men of America, banish from your 
bosoms those daemons, suspicion and distrust, which have 
so long been working your destruction. Be assured, the men 
whom ye have delegated to work out, if possible, your 
National salvation are the men in whom ye may confide 
their extensive knowledge, known abilities, and approved 
patriotism warrant it their determinations must be just, 
and if ye wish well to your country, ye will place such con- 
fidence in them as to sanction with your approbation, the 
measures they may recommend, notwithstanding they may 
in some small points militate against your ideas of right. 
Consider, they have at their head a Washington, to describe 
the amiableness of whose character would be unnecessary." 

The economic situation in Philadelphia was thus 
described in the Gazette: 

"It is remarkable that the cry of scarcity and poverty 
encreases with the appearance of expence and luxury in the 
mode of living pursued by the inhabitants of this city. The 
costliness of the furniture, the profusion of the table, the 
elegance of the equipage and the refinements of dress, must, 
to the observation of a stranger, bespeak affluence and pros- 
perity; while the tenor of conversation, the accumulation 
of debts and the unpunctuality of payments would, indeed, 



216 THE EXECUTIVE; THE JUDICIARY 

indicate a real want and actual insolvency. There is scarce 
a street too that does not present us with some improvements 
in building, at the very moment that hundreds of houses are 
untenanted ; and while crowds are daily retiring to the dis- 
tant districts of the Continent, we find the city rapidly ex- 
tending its western boundaries. Would it not add to the 
happiness of Pennsylvania were her citizens to profess less 
poverty and to practise more economy?" 

THURSDAY, JUNE 14, 1787 

IN CONVENTION 

The form of government thus far adopted by the 
Committee of the Whole was so strongly National and 
so divergent from previous plans that many of the 
members, especially of those from the smaller States, 
were aghast. Their views of the situation at this stage 
of the Convention were strikingly set forth later by 
Luther Martin of Maryland. 1 It was proposed, said 
he, that the Senate should have twenty-eight members, 
of which Virginia, Pennsylvania, and Massachusetts 
were to have thirteen. "Having this inequality in 
each branch of the Legislature, it must be evident that 
they would make what laws they pleased, however 
injurious or disagreeable to the other States ; and that 
they would always prevent the other States from mak- 
ing any laws, however necessary and proper, if not 
agreeable to the views of these three States." Martin 
pointed out, moreover, that as the Executive was to 
be elected by the Legislature, and the Judges by the 
Senate, and as the Legislature was to have a negative 
on all State laws which it deemed not in harmony with 
the Union, these three States might control the whole 
system of Government; "a system of slavery which 
bound hand and foot ten States in the Union and 
placed them at the mercy of the other three and under 

1 The Genuine Information (1788), by Luther Martin, Elliot's Debates, I. 



THURSDAY, JUNE 14, 1787 217 

the most abject and servile subjection to them." 
Since Virginia, Pennsylvania, and Massachusetts had 
then a population of about 1,350,000 as against a 
population of about 1,750,000 in the other ten States, 
there were some grounds for this apprehension. 1 Mar- 
tin then pointed out that General Washington, during 
the sessions of the Committee of the Whole, was on the 
floor, "in the same situation with the other members 
of the Convention at large, to oppose any system he 
thought injurious or to propose any alterations or 
amendments he thought beneficial", and that both 
Washington and Franklin "appeared cordially to 
approve and give their hearty concurrence" to the 
proposals of the Committee. The delegates who op- 
posed such a system of Government had considerable 
reason to feel grave at the trend of the Convention; 
and accordingly, William Paterson, of New Jersey, on 
this day, asked for an adjournment, so that they might 
"contemplate the plan reported" and "digest one 
purely Federal and contradistinguished from the 
reported plan." The situation was complicated, for 
the opposition arose on two distinct grounds. Some 
members of the New Jersey, Connecticut, New York 
delegations and Luther Martin of Maryland were 
against any departure from the principle of the Con- 

1 It may be noted that according to the Pennsylvania Packet, Dec. 11, 1786, the 
populations of the States were then estimated as follows : New Hampshire, 150,000 ; 
Massachusetts, 400,000; Rhode Island, 59,670 ; Connecticut, 192,000; New York, 
250,000; New Jersey, 150,000 ; Pennsylvania, 300,000 ; Delaware, 50,000 ; Mary- 
land, 320,000; Virginia, 650,000; North Carolina, 300,000; South Carolina, 
225,000 ; Georgia, 56,000. By the first census in 1790 of the free white population 
of 3,100,000, Massachusetts had 469,000; New York, 314,000; Pennsylvania, 
424,000; Virginia, 503,000 a total of 1,710,000, leaving 1,390,000 to the other 
nine States. These four States in 1790 had fifty-six members of the House, while 
the other nine had forty-seven. It is interesting to note that the whole territory 
included in the thirteen States was about 500,000 square miles ; of this, Virginia 
(including the Kentucky district) held 103,000; North Carolina (including the 
Tennessee district) held 84,000; and Georgia (including the Alabama and Mis- 
sissippi districts) held 153,000 a total of 340,000 in these three States, and the 
other ten States held 167,000 square miles; in addition, the Northwest Territory 
(comprising the districts of Ohio, Indiana, and Illinois) held 134,000 square miles. 



218 THE EXECUTIVE; THE JUDICIARY 

federation, wishing merely to add a few new powers 
to Congress rather than to substitute a National 
Government; others of New Jersey and Delaware 
were opposed to any new Government unless it 
should embody the principle of equality of represen- 
tation of the States. As John Dickinson of Delaware 
said to Madison: "You see the consequence of push- 
ing things too far. Some of the members from the 
small States wish for two branches in the General 
Legislature and are friends to a good National Govern- 
ment ; but we would sooner submit to a foreign power 
than submit to be deprived of an equality of suffrage 
in both branches of the Legislature, and thereby be 
thrown under the domination of the large States." l 
Accordingly, the Convention adjourned "that leisure 
might be given for the purpose." 

OUT OF CONVENTION 
Washington noted : 

"Dined at Major [Thomas Lloyd J Moore's (after being 
in Convention) and spent the evening at my lodgings." 

The North Carolina delegates wrote, this day, to 
Governor Caswell : 

"Though we sit from day to day, Saturdays included, it 
is not possible for us to determine when the business before 
us can be finished. A very large field presents to our view 
without a single straight or eligible road that has been trod- 
den by the feet of Nations. An Union of Sovereign States, 
preserving their civil liberties and connected together by 

1 Dickinson, then fifty-five years of age, was "one of the most active members of 
the Convention and took part in the discussion of a great variety of subjects 
a fact which is a little remarkable, for his health during the session was more than 
usually feeble." Life and Times of John Dickinson (1891), by Charles J. Stille", 258. 
Dickinson himself wrote to Benjamin Rush, a year later, Aug. 4, 1788: "It is 
impossible for me to engage again in the duties of public life. I believe there is 
not a man upon earth besides myself who can form any idea of the distresses, from 
weakness of body, that I have undergone by endeavoring to sustain a public charac- 
ter with some decency, while laboring under such infirmities." Ibid., 279. 



THURSDAY, JUNE 14, 1787 

such tyes as to preserve permanent and effective Govern- 
ments, is a system not described, it is a circumstance that 
has not occurred in the history of men; if we shall be so 
fortunate as to find this in descript, our time will have been 
well spent. Several Members of the Convention have their 
wives here and other gentlemen have sent for theirs. This 
seems to promise a summer's campaign. Such of us as can 
remain here from the inevitable avocation of private busi- 
ness, are resolved to continue whilst there is any prospect of 
being able to serve the State and Union. ..." 



CHAPTER FOUR 

THE SMALL, VERSUS THE LARGE STATES 

June 15, 16 .... The Paterson Plan 

(June 17) (Sunday) 

June 18 Hamilton's Speech 

June 19 Adoption of Randolph's Resolutions 

June 20, 21, 22, 23, 25 . Debate on the Report 

(June 24) (Sunday) 

June 2G Terms of Members of the Legisla- 
ture 

June 27 Luther Martin's Speech 

June 28 Doctor Franklin and Prayers 

June 29 Vote on Representation in the 

House 

June 30, July 2 ... Representation in the Senate 

(July 1) (Sunday) 

July 3 Recess 

FRIDAY, JUNE 15, 1787 

IN CONVENTION 
The Paterson Plan 

On this day, William Paterson laid before the Con- 
vention a Plan which had been prepared as a sub- 
stitute for Randolph's Virginia Plan. Its authorship 
is not known, but probably Roger Sherman, Luther 
Martin, and Paterson took the leading part in drafting 
it. 1 The very first section stated its theory : "That 

1 Bancroft states (II, 40, note) that informants of the English Government 
named Governor William Livingston of New Jersey as the author of this Plan. It 
may be remembered, says Bancroft (II, 148), that Ellsworth, Paterson and Luther 
Martin were fellow students at Princeton, Paterson in the Class of 1763, and the 
other two in the Class of 1766. It may also be noted that six other delegates were 



FRIDAY, JUNE 15, 1787 

the Articles of Confederation ought to be so revised, 
corrected and enlarged as to render the federal Con- 
stitution adequate to the exigencies of Government and 
the preservation of the Union." It provided for grant 
of additional powers to Congress, including power to 
levy import duties and stamp taxes, "to be applied to 
such federal purposes as they shall deem proper and 
expedient" ; if requisitions made by Congress upon the 
States were not complied with, Congress might pass 
acts to direct the collection thereof ; but none of the 
powers of Congress were to be exercised except with the 
assent of a specified number of States. The only other 
substantial changes in the Articles of Confederation 
were a provision for an Executive to consist of several 
persons elected by Congress and removable by Con- 
gress on application of a majority of the State Gover- 
nors, and for a Judiciary appointed by the Executive. 1 

It is probably true, as Farrand says, that "it would 
seem as if the New Jersey Plan more nearly represented 
what most of the delegates supposed that they were 
sent to do, " and if presented earlier, on May 9, when 
the Virginia Plan was offered, it might have been 
adopted. "But in the course of the two weeks dis- 
cussion, many of the delegates had become accustomed 
to what might well have appeared to them at the 
outset as somewhat radical ideas." 2 

One point must be emphasized. Those who opposed 
the Virginia Plan based their opposition on political 

Princeton graduates Alexander S. Martin, of the Class of 1756; William C. 
Houston, '68 ; Gunning Bedford, '71 ; James Madison, '71 ; Jonathan Dayton, '76 ; 
and William R. Davie, '76. 

1 J. F. Jameson pointed out in Amer. Hist. Ass. Report (1902), 1, 133, that there 
are four different texts of these Paterson Resolutions: (1) that given by Madison 
and printed in Documentary History, Elliot* s Debates, V, Hunfs Writings of Madison, 
III, and Gilpin's The Madison Papers; (2) that printed in the Journal of the Con- 
vention, in 1819, derived from manuscript deposited by Gen. Joseph Bloomfield, 
Executor of David Brearley ; (3) that printed in Maryland Gazette, Feb. 15, 1788, 
and Carey's American Museum, III, 362 ; (4) that printed from notes by King iii 
Life and Correspondence of Rufus King, I, 600. 

2 The Framing of the Constitution (1913), by Max Farrand. 



222 THE SMALL VERSUS THE LARGE STATES 

grounds and not on economic grounds. They were not 
opposed to it because it favored the interests of 
property, but because it trespassed on the political 
rights of the States. And later, the leading opponents 
of the Constitution like Robert Yates, Elbridge 
Gerry, Luther Martin, Patrick Henry, George Mason, 
and Richard Henry Lee were afraid of the principles 
of the Virginia Plan as finally embodied in the Constitu- 
tion, not because of the protection it gave to property 
interests, but because they feared it as a possible engine 
of a consolidated Government, encroaching on or 
abolishing the powers and rights of the States. 

SATURDAY, JUNE 16, 1787 

IN CONVENT/ON 

On this day, in the Convention sitting as a Com- 
mittee of the Whole, the battle was directly joined 
between the advocates of the Randolph or Virginia Plan 
and those of the Paterson or New Jersey Plan. Against 
the latter, Wilson made one of the strongest speeches of 
the Convention, comparing it with the Virginia Plan, 
point by point, and setting forth the defects in the 
theory of the Congress under the Confederation a 
single house Legislature elected by the States. Ran- 
dolph also forcibly showed the necessity of establishing 
a National form of Government which should legislate 
for and act upon individuals. In behalf of the New 
Jersey Plan, Paterson and John Lansing of New York 
argued at length. The latter said that "New York 
would never have concurred in sending delegates to the 
Convention if she had supposed the deliberations were 
to turn on a consolidation of the States and a National 
Government"; and he expressed his opinion that the 
States would never ratify. "The scheme is itself 
totally novel. There is no parallel to it to be found." 



SATURDAY, JUNE 16, 1787 223 

Paterson preferred his Plan, "because it accorded,* first 
with the powers of the Convention, and second with 
the sentiments of the people." He urged that "our 
object is not such a Government as may be best in itself, 
but such a one as our constituents have authorized us 
to prepare and as they will approve." Paterson thus 
expressed a point of view which differed radically from 
that of the advocates of a new Constitution. They 
were not concerned about the authority from their 
"constituents." They desired to form a Government 
such as "may be best in itself." This idea they 
expressed throughout the Convention. Randolph said 
now that he "was not scrupulous on the point of power. 
When the salvation of the Republic was at stake, it 
would be treason to our trust not to propose what we 
found necessary." And Hamilton undoubtedly pre- 
sented the views of the bulk of the delegates, when he 
said (two days later) : "We owed it to our Country 
to do, on this emergency, whatever we should deem 
essential to its happiness. The States sent us here to 
provide for the exigencies of the Union. To rely on 
and propose any plan not adequate to these exigencies, 
merely because it was not clearly within our powers, 
would be to sacrifice the means to the end. . . . The 
great question is, what provisions shall we make for the 
happiness of our country?" 

The precise powers which the delegates possessed, in 
attending the Convention, were as follows : The Arti- 
cles of Confederation had provided that they should 
"be inviolably observed by every State, and the Union 
shall be perpetual; nor shall any alteration at any 
time hereafter be made in them, unless such alteration 
be agreed to in a Congress of the United States, and be 
afterwards confirmed by the Legislature of every 
State." In accordance with this Article, the credentials 
of the delegates from every State (except New Jersey) 



THE SMALL VERSUS THE LARGE STATES 

had expressly provided that any Act determined upon 
by the Convention should be reported to Congress and 
when agreed to therein, be duly confirmed by the 
several States. 1 The purposes for which the delegates 
were to meet were expressed in their credentials in 
every State, as, in substance, "to render the Federal 
Constitution adequate to the exigencies of Government 
and the preservation of the Union." Under this broad 
power, it is clear that (except in New Jersey and 
Delaware) there was no limitation whatever upon the 
kind of amendment or change in the Articles of Con- 
federation which the delegates might adopt, provided 
they reported it to Congress for acceptance and to the 
States for unanimous confirmation. 2 The delegates did 
not, in fact, exceed their powers, until the crucial day 
(August 31) when they decided, without requiring the 
acceptance by Congress, to submit their work directly 
to Conventions of the People in the respective States. 
This was a revolutionary step. When the delegates 
took that action, they threw off entirely the restrictions 
of their credentials, and acted solely on their own 
authority. 

OUT OF CONVENTION 
Washington noted : 

"In Convention. Dined with the Club at the City Tav- 
ern, and drank tea at Doctor [William] Shippen's with Mrs. 
Livingston's party." 

1 New Jersey had empowered its delegates "to meet ... for the purpose of 
taking into consideration the state of the Union as to trade and other important 
objects, and of devising such other provisions as shall appear to be necessary to 
render the Constitution of the Federal Government adequate to the exigencies 
thereof." 

2 The only restrictions upon the power of the delegates to amend were those con- 
tained in the credentials from Connecticut which provided that the delegates were 
"to confer . . . and discuss upon such alterations and provisions agreeable to the 
general principles of Republican Government* as they shall think proper to render the 
Federal Constitution adequate to the exigencies of Government and the preserva- 
tion of the Union " ; and those contained in the credentials from Delaware which 
contained a proviso that "such alterations or further provisions do not extend to 



SATURDAY, JUNE 16, 1787 225 

Rufus King wrote, this day, to Nathan Dane in New 
York : * 

"I think that I informed you that by an early order of the 
Convention, the members are restrained from communi- 
cating anything done in Convention during the time of then- 
session. The object was the prevention of partial represen- 
tations, and also the additional consideration of leaving the 
Report of the Convention to stand or fall on its own merits. 
I am, therefore, prevented from writing to you with that 
freedom which otherwise I should do, as well for your infor- 
mation of the proceedings of the Convention, as to obtain 
your sentiments on points of consequence which must here 
receive their discussion. . . . We hear nothing from New 
Hampshire, not even who is President." 

The Journal printed fifty -two names as "an exact 
list of the Members of the Convention." The Gazetteer 
stated that : 

"By the present very respectable delegation in Conven- 
tion, eleven States are represented. The Delegates from the 
State of New Hampshire, though appointed, have not yet 
made their appearance. Rhode Island is the only State in 
the Union that has refused to take a seat at this honorable 
board of counsellors. A very short period will unfold 
whether this refusal will redound to her honour or disgrace." 

The Gazetteer also gave currency to the statement that 
great unanimity prevailed in the Convention : 2 

"We hear that the greatest unanimity subsists in the 
Councils of the Federal Convention. It is to be hoped, says 
a correspondent, the United States will discover as much wis- 
dom in receiving from them a suitable form of government 
to preserve the liberties of the people, as they did fortitude 

that part of the Fifth Article of the Confederation . . . which declares that 'in 
determining questions in the United States in Congress assembled, each State shall 
have one vote. ' " 

1 Nathan Dane Papers MSS. 

2 This statement was reproduced widely in the newspapers and gave a wrong 
impression to the country; see Boston Gazette, July 2; Connecticut C our ant, June 
25, 1787. 



226 THE SMALL VERSUS THE LARGE STATES 

in defending them against the arbitrary and wicked attempts 
of Great Britain. Nothing but Union and a vigorous Con- 
tinental Government can save us from destruction." 

This report was so far from the truth as to be almost 
humorous. It has been suggested that it may have 
been disseminated by delegates who feared that if the 
actual state of the Convention should be known, the 
country might despair. A more accurate picture of 
the conditions appeared a few days later in newspapers 
of Boston : 1 

"Though the particular arguments, debates, and decisions 
that take place in the Federal Convention are considered as 
matters of secrecy, we understand, in general, that there 
exists a very great diversity of opinion among the members 
and that there has been already a wonderful display of wis- 
dom, eloquence, and patriotism. Some schemes, it is said, 
have been projected which preserve the form, but effectually 
destroy the spirit of a democracy ; and others, more bold, 
which regarding only the necessity of a strong Executive 
power, have openly rejected even the appearance of a popu- 
lar Constitution. From the plans of this last description, 
there is little reason to apprehend danger, for the people will 
hardly be induced to make a voluntary surrender of their 
rights, but they may be deceived by the flattery of outward 
show into a passive and destructive acquiescence." 

One of the few pessimistic letters as to the possibility 
of accomplishment of results by the Convention was 
written, this day, by Stephen Higginson, a former 
Member of Congress from Massachusetts, to Nathan 
Dane. 

"My expectations from the Convention are not great, 
though it must be admitted we shall probably never have 
more wisdom and political knowledge again collected, than 
they possess. They may draw the great outlines of a Gov- 
ernment for the Union, much more respectable and efficient 

1 Massachusetts Centinel^ June 20 ; Independent Chronicle^ June 21, 1787. 



MONDAY, JUNE 18, 1787 

in its principles and structure than the present. They may 
harmonize well, and be themselves convinced that such a 
system is necessary to our safety and happiness as a nation. 
They may at their return to their respective States be diffus- 
ing the principles and reasons which satisfied themselves and 
by degrees may in that way be preparing the public mind 
for its reception. But much time will be necessary to extend 
these impressions and much must be our suffering from the 
obvious weakness of the present system before competent 
powers will be delegated by the States. Sad experience 
alone will fully satisfy the body of this people that the sov- 
ereignty of the several States must in a degree be trans- 
ferred to the Union and the people at large not so violently 
opposed to every degree of implicit obedience." 

SUNDAY, JUNE 17, 1787 

Washington noted : l 

"Went to Church. Heard Bishop [William] White 
preach, and see him ordain two gentlemen (into the order 
of) Deacons. After which rid 8 miles into the Country and 
dined with Mr. Jno. Ross in Chester County. Returned 
(to town again about dusk) in the afternoon." 

MONDAY, JUNE 18, 1787 

IN CONVENTION 
Hamilton's Speech 

On this day, Alexander Hamilton of New York, who 
(as Madison states) "had been hitherto silent on the 
business before the Convention, partly from respect to 
others whose superior abilities, age and experience 
rendered him unwilling to bring forward ideas dis- 
similar to theirs, and partly from his delicate situation 
with respect to his own State, to whose sentiments 

1 Jacob Hiltzheimer recorded in his Diary : " Went twice to church. Mr. Robert 
Morris went with General Washington in the General's carriage to dine at Mr. 
John Ross's country house over SchuylkiU." 



228 THE SMALL VERSUS THE LARGE STATES 

as expressed by his colleagues he could by no means 
accede", came forward with a speech of great length, 
which must have surprised and disturbed the Con- 
vention. He began by saying that: "The crisis 
which now marked our affairs was too serious to permit 
any scruples whatever to prevail over the duty imposed 
on every man to contribute his efforts for the public 
safety and happiness." He then proceeded to state 
that he was unfriendly to both Plans and particularly 
to that from New Jersey. He, like Randolph, pointed 
out the essential defects in the existing Federal system ; 
but, unlike Randolph, he believed the Virginia Plan did 
not provide for a sufficiently strong Government. He 
stated his belief that "the British Government was the 
best in the world and that he doubted much whether 
anything short of it would do in America." He 
concluded with submitting a sketch of a plan, which, 
he admitted, " went beyond the ideas of most members ", 
but which embodied principles necessary to check and 
control the existing evils. This sketch provided, 
amongst other things, for a Senate and an Executive, 
both elected to serve during good behavior, and for the 
appointment of State Governors by the General 
Government. Such provisions alone would have made 
it impossible of acceptance. Hence, it is not singular 
that this Hamilton sketch was neither referred to any 
Committee, nor taken up by the Convention for action 
in any way. 1 "The gentleman from New York is 
praised by all, but supported by no gentleman," 
observed Dr. William Samuel Johnson. 2 In this 
connection, Thomas H. Benton later reported a striking 
conversation with Rufus King in the Senate, in 1824 : 3 

1 Towards the close of the Convention, Hamilton handed to Madison a draft 
of a proposed Constitution (elaborated from his sketch), but it was not actually sub- 
mitted to the Convention. See infra, p. 824, Hamilton to Pickering, Sept. 18, 1803. 

8 As reported in King's Notes. 

s Thirty Years' V*ew (1854), by Thomas H. Benton, I, 58. 



MONDAY, JUNE 18, 1787 

"He said some things to me which I think ought to be 
remembered by future generations, to enable them to appre- 
ciate justly those founders of our Government, who were in 
favor of a stronger organization than was adopted. He 
said : * You young men who have been born since the Revo- 
lution look with horror upon the name of a King and upon 
all propositions for a strong Government. It was not so with 
us. We were born the subjects of a King and were accus- 
tomed to subscribe ourselves, his Majesty's most faithful 
subjects, and we began the quarrel which ended in the Rev- 
olution not against the King but against his Parliament ; 
and in making the new Government many propositions were 
submitted which would not bear discussion and ought not 
to be quoted against their authors, being offered for con- 
sideration and to bring out opinions, and which, though 
behind the opinions of this day, were in advance of that 
day.'" 

And added Ben ton : 

" These things were said chiefly in relation to General 
Hamilton who had submitted propositions stronger than 
those adopted, but nothing like those which party spirit 
attributed to him. I heard these words of [King] I hope 
with profit ; and commit them, in the same hope, to after 
generations." 

OUT OF CONVENTION 
Washington noted : 

"Attended the Convention. Dined at the Quarterly 
Meeting of the Sons of St. Patrick, held at the City tavn. 
Drank tea at Doctr. Shippen's with (the party of) Mrs. 
Livingston." 

A Philadelphia despatch of this date in the Boston 
papers and elsewhere said : 1 

"They have a great work amid many difficulties before 
them. To form a generous plan of power for thirteen States 
certainly requires the most consummate wisdom, and from 

1 American Herald, June 25 ; Independent Chronicle, June 28, 1787. 



230 THE SMALL VERSUS THE LARGE STATES 

the unanimity and spirit which have heretofore pervaded 
the Continent, we may have reason to expect that we shall 
keep the chain of friendship bright, and unite as citizens of 
one respectable and mighty empire. The same hands that 
laid the foundation of the temple of liberty are again 
employed in this arduous task ; may they be enabled to fin- 
ish the fabrick and bring forth the headstone with trium- 
phant shoutings." 

Nathaniel Gorham of Massachusetts, who had been 
serving as Chairman of the Committee of the Whole, 
wrote this day to Theophilus Parsons an extremely 
interesting description of the conditions then prevailing 
in the Convention a letter somewhat violative, 
however, of the Secrecy Rule : l 

"The present Federal Government seems near its exit; 
and whether we shall in the Convention be able to agree upon 
mending it, or forming and recommending a new one, is not 
certain. All agree, however, that much greater powers are 
necessary to be given under some form or other. But the 
large States think the representation ought to be made in 
proportion to the magnitude of the States, and consequently 
more like a National Government, while the small States 
are for adhering to the present mode. We have hitherto 
considered the subject with great calmness and temper; 
and there are numbers of very able men in this body who 
all appear thoroughly alarmed with the present prospect. I 
do not know that I am at liberty to write anything on this 
subject. I shall, therefore, only observe further that all 
agree the Legislative and Executive ought to be separate 
and that there should be a National Judiciary. I beg you 
not to mention having heard anything from me on the sub- 
ject, except to your brother to whom I should have written, 
but I am quite overcome with the heat of the weather." 

Theodore Sedgwick of Massachusetts, who had been 
lukewarm as to the desirability of a Convention, and 

1 Memoir of Theophilus Parsons (1850), by Theophilus Parsons. 



TUESDAY, JUNE 19, 1787 

who, highly conservative, had been much disturbed by 
the Shays Rebellion, wrote to Kufus King, this day : 

"I am happy to be informed that the characters compos- 
ing the Convention give us a prospect of deriving advantage 
from their deliberations. Much is to be done. Every man 
of observations is convinced that the end of government, 
security, cannot be attained by the exercise of principles 
founded on democratic equality. A war is now actually 
levied on the virtue, property, and distinctions in the com- 
munity, and however there may be an appearance of a tem- 
porary cessation, yet the flame will again and again break 
out." 

This letter is of interest as being one of few instances, 
in all the correspondence which has hitherto come to 
light, of the expression of a sentiment which gave 
justification to the charge made subsequently by 
opponents of the Constitution, that its upholders were 
imbued with a desire for aristocratic government. 

TUESDAY, JUNE 19, 1787 
IN CONVENTION 

Most of this day was occupied by a long, masterly, 
brilliant, and convincing speech by Madison, concluding 
the debate. He examined Paterson's Plan, point by 
point, arguing successively that its provisions could 
neither prevent those violations by the States of the 
law of nations and of treaties "which if not prevented 
must involve us in the calamities of foreign wars"; 
nor "prevent encroachments on the Federal authority " ; 
nor "trespasses of the States on each other", such as 
the aggressions caused by emission of paper money, 
retaliatory statutes, etc., which "threatened danger 
not to the harmony only, but the tranquillity of the 
Union"; nor would it "secure the internal tran- 
quillity of the States themselves" or "good internal 
legislation and administration to the particular States 



THE SMALL VERSUS THE LARGE STATES 

themselves"; nor would it "secure the Union against 
the influence of foreign powers over its members." 

At the conclusion of Madison's speech, a vote was 
taken on the plain proposition whether the Randolph 
Resolutions "should be adhered to as preferable to those 
of Mr. Paterson." Seven States favored such adher- 
ence, while New York, New Jersey, and Delaware voted 
no, and Maryland was divided. 

It is to be remarked that in all the votes thus far, the 
State of Georgia, with less than sixty thousand inhabit- 
ants, voted with the large States. This was due to 
the fact that, as her area exceeded that of Virginia and 
North Carolina, and was only fourteen thousand square 
miles less than all the other ten States together, Georgia 
expected in the near future to develop into one of the 
most important and populous States in the Union. 1 

The Committee of the Whole then dissolved, and 
Randolph's nineteen Resolutions were again reported 
to the Convention. 

OUT OF CONVENTION 
Washington noted : 

"Dined (after leaving Convention) in a family way at 
Mr. Morris's, and spent the evening there in a very large 
company." 

William R. Davie, a delegate from North Carolina, 
wrote to Governor Caswell that: "We move slowly 
in our business. It is indeed a work of great delicacy 
and difficulty, impeded every step by jealousies and 
interest." 2 Nathan Dane, on this day, wrote from 

1 General Nathanael Greene wrote to Charles Thomson, from Georgia, April 24, 
1786 : " I hope the politicks of this State will please you better than they have 
done. The people begin to grow more enlightened and a more liberal policy to 
prevail. . . . The State has been of little importance to the Union, but its great 
increase of tracts and population will soon place it among the first in the Confeder- 
ation. If you can keep the ship afloat a few years, the navigation will be less diffi- 
cult." Charles Thomson Papers MSS, in Library of Congress. 

2 North Carolina Records, XX, 725. 



WEDNESDAY, JUNE 20, 1787 233 

New York to Rufus King, intimating that Major 
William Pierce of Georgia (who, though a delegate, 
was then in New York attending Congress) had some- 
what infringed the Secrecy Rule : 

"I fully agree to the propriety of the Convention order 
restraining its members from communicating its doing, tho' 
I feel a strong desire and curiosity to know how it proceeds. 
I think the public never ought to see anything but the final 
report of the Convention the digested result only of their 
deliberations and enquiries. Whether the plans of the 
Southern, Eastern or Middle States succeed, never, in my 
opinion, ought to be known. A few reflections on the sub- 
ject lead me to doubt whether one of your members, Mr. P. 
who two or three days since came to this city, fully under- 
stood the true meaning, and full and just extent of the order 
not to communicate." 

WEDNESDAY, JUNE 20, 1787 

IN CONVENTION 

As the Nationalist party in the Convention had 
apparently secured a great triumph in the vote to 
adhere to the Virginia Plan for the new Government, 
its leaders evidently believed that they could afford to 
make minor concessions. Accordingly, on this day, 
they adopted a suggestion made by Ellsworth, seconded 
by Gorham, that the word "National" be dropped 
wherever used, and the words "of the United States" 
be substituted. This was, of course, a mere verbal 
modification, as the system still remained National in 
its scope ; and all parties so understood. Speeches in 
opposition to the whole system were made by Lansing, 
Luther Martin, and Sherman. In the course of this 
debate, however, Sherman again outlined the compro- 
mise on which the future success of the Convention 
was to be built. "If the difficulty on the subject of 
representation cannot be otherwise got over," he said 



234 THE SMALL VERSUS THE LARGE STATES 

that "he would agree to have two branches, and a 
proportional representation in one of them, provided 
each State had an equal voice in the other." And 
Mason made a sage and conciliatory speech which 
calmed the debate, saying: "Though some have 
expressed much warmth on this and former occasions, 
I can excuse it, as the result of sudden passion, and hope 
that although we differ in some particular points, if we 
mean the good of the whole, our good sense, upon 
reflection, will prevent us from spreading our discon- 
tents further. " 1 

OUT OF CONVENTION 
Washington noted : 

"Attended Convention. Dined at Mr. [Samuel] Mere- 
dith's and drank tea there." 

The Herald well characterized the work of the 
Convention by saying that : 2 

"Whatever measure may be recommended by the Federal 
Convention, whether an addition to the old Constitution or 
the adoption of a new, it will in effect be a revolution in 
Government, accomplished by reasoning and deliberation ; 
an event that has never occurred since the formation of 
society and which will be strongly characteristic of the phil- 
osophic and tolerant spirit of the age." 

The Gazette voiced a theory, which later was widely 
shared by adherents of the Constitution, that oppo- 
sition to that instrument proceeded largely from 
persons holding office in the States : 3 

1 As reported in Yates' Notes, but not by Madison. 

2 See Pennsylvania Journal, June 23, 1787. This article was widely republished 
see New York Journal, June 28 ; Independent Chronicle, July 19 ; Boston Gazette, 
July 23, 1787. 

3 See also Massachusetts Centinel, June 27, 1787: "The Grand National Con- 
vention now sitting at Philadelphia, it is said, is the most respectable body of men 
ever convened in the Western World." On June 30, this paper said : "The prin- 
cipal difficulty (says a correspondent) in the way of necessary alterations in our 
Government will arise from the officers of Government. Their interests, it is 



WEDNESDAY, JUNE 20, 1787 35 

"It is agreed, says a correspondent, that our Convention 
are framing a wise and free Government for us. This Gov- 
ernment will be opposed only by our civil officers who are 
afraid of new arrangements taking place, which will jostle 
them out of office. ... In the meantime, the people are 
desired to beware of all essays and paragraphs that are 
opposed to a reform in our Government, for they all must and 
will come from civil officers or persons connected with them." 

Jefferson in Paris wrote to Madison, this day : 

"The idea of separating the Executive business of the 
Confederacy from Congress, as the Judiciary is already in 
some degree, is just and necessary. . . . The negative pro- 
posed to be given them on all the acts of the several Legis- 
latures is now for the first time suggested to my mind. 
Prima fade I do not like it. ... Would not an appeal 
from the State Judicatures to a Federal Court, in all cases 
where the Act of Confederation controuled the question, 
be as effectual a remedy, and exactly commensurate to the 
defect?" 

Nathan Dane wrote from Congress in New York to 
Nathaniel Gorham, a curious description of the harmful 
effect which the Convention was having upon the 
people's attitude towards Congress : l 

"I wish the officers of Congress and members not engaged 
in the Convention would return to New York. I do not 
know how it may be in the Southern States, but, I assume, 
the present state of Congress has a very disagreeable effect 

imagined, will be affected by the alteration. . . . But it is to be hoped the people 
will neither be influenced by such men or their contentions, in the adoption of a new 
Federal Government." And see Boston Gazette, July 9, 1787. 

1 Mass. Hist. Soc. Proc. (1925), LIX, 95. Dane had written to Governor John 
Hancock, May 31, 1787 : "I beg leave to inform your Excellency that Mr. Gorham 
and Mr. King are attending the Federal Convention now setting at Philadelphia, 
and that there has not been a representation of Massachusetts in Congress since 
the 23d instant. It is generally thought probable that the Convention will con- 
tinue setting for some months and it seems to be uncertain whether either of those 
gentlemen can attend Congress while the Convention shall be setting. . . . Sev- 
eral of the members of Congress are attending the Convention, and only four States, 
at present, are represented in Congress, and it appears highly probable that Con- 
gress will not be in a situation to do much business till its members shall return from 
the Convention." See Massachusetts State Archives, Letters 1786-1787, p. 67. 



236 THE SMALL VERSUS THE LARGE STATES 

in the Eastern States. The people hear of a Convention 
in Philadelphia, and that Congress is done sitting, etc. 
Many of them are told, it seems, that Congress will never 
meet again. Dr. (Samuel) Holten says he saw several sober 
men who had got an idea that the people were to be called 
on to take arms to carry into effect immediately the report 
of the Convention, etc. I see no help for men's being so 
absurd and distracted ; but those things have a pernicious 
effect on the industry, peace and habits of the people." 

Dane also thought that too many rumors were being 
published in the newspapers as to the Convention : 

"Are not the printers imprudent to publish so many con- 
tradictory pieces about the proceedings of your body, which 
must be mere conjecture? You know many people believe 
all they see in the newspapers, without the least examina- 
tion. ..." 

THURSDAY, JUNE 21, 1787 

IN CONVENTION 

The Convention proceeded to consider and vote the 
Randolph Resolutions voted by the Committee of the 
Whole with reference to the election of the National 
Legislature (as discussed infra). 

OUT OF CONVENTION 
Washington noted : 

" Attended Convention. Dined at Mr. Prager's, and 
spent the evening in my chamber." 

FRIDAY, JUNE 22, 1787 
IN CONVENTION 

The Convention continued to consider and vote the 
Randolph Resolutions with reference to the National 
Legislature, voted by the Committee of the Whole (as 
discussed infra). 1 

1 The debates on this day can be studied best in Yates' Notes, which are fuller 
than Madison's. 



SATURDAY, JUNE 23, 1787 237 

OUT OF CONVENTION 
Washington noted : 

"Dined (in a family way) at Mr. Morris's and drank tea 
with Mr. Francis Hopkinson." 

SATURDAY, JUNE 23, 1787 

IN CONVENTION 

The Convention continued to consider and vote upon 
the Randolph Resolutions, with reference to the 
National Legislature, voted by the Committee of the 
Whole (as discussed infra). 1 

OUT OF CONVENTION 
Washington noted : 

"In Convention. Dined at Doctr. Huston's and drank 
tea at Mr. Morris's." 

Apparently, Washington did not attend, on this 
Saturday, an entertainment given for the benefit of 
Americans held in captivity by Algerine pirates which 
was advertised to be given in the "cool and com- 
modious Operahouse" at Southwark : 2 

"For the relief of our fellow citizens enslaved at Algiers on 
Monday next a Concert, Vocal and Instrumental, in the 
first part of which will be introduced *The Grateful War or 
The Pupil in Love', and in the second part will be presented 
the musical entertainment of 'The Poor Soldier/ ... A 

1 The debates on this day can be studied best in Yates* Notes, which are fuller 
than Madison's. 

2 Pennsylvania Herald, June 23, 1787. That the attendance did not fulfil expec- 
tations appears from a letter in a subsequent issue of the Herald (June 27) : "I was 
at the opera on Monday night and very sorry to see so thin a house for such a desir- 
able purpose ; many people, I have been informed, were prevented going at this hot 
season for fear of being overheated. This, I own, weighed some time with me but 
humanity prevailed. I was not a little surprised at the neat and elegant manner 
in which the managers have fitted up the building ; which, from the methods taken 
of ventilating, it is certainly the coolest in Philadelphia.'* The editor adds that : 
"The benevolent intention of the managers in favor of our brethren at Algiers has 
perhaps been frustrated by the inattention of the citizens to the object of the per- 
formance." 



238 THE SMALL VERSUS THE LARGE STATES 

poetical address composed for the occasion will be delivered 
at the opening of the entertainment. And the whole will 
conclude with an elegant Vaud-ville." 

The Gazetteer published a New Jersey letter as to the 
public expectations of the Convention : l 

"We expect something great will be recommended by the 
Convention now sitting in your city. They can recom- 
mend. Congress can do the same. But if for the better, 
will all the States adopt the measures so recommended? 
I fear not, but wish for the best. Until one Supreme Head is 
fixed upon a permanent foundation, with power sufficient 
to regulate trade over the whole Union and can command 
cash to pay the foreign debt, regulate peace, war, etc., we 
shall not thrive. I have no notion that any individual 
should chuse a law to suit himself. This is the idea that 
many have of liberty and independence; but it is a very 
false one. If the United States and individual States were 
honest, they might enact laws to make their citizens and sub- 
jects so. But really we cannot expect to see people honest 
and punctual, when they see the Legislatures so far from it 
themselves. A general reformation (of all things) at this 
time is most necessary, or we must sink." 

And the Packet printed a letter from Philadelphia to 
Baltimore on the same subject : 

"I know you are waiting with anxious expectation to 
be informed of the proceedings of the Grand Convention. 
Nothing as yet has transpired. All that we know is that a 
Committee is appointed to collect materials and to form a 
report for the discussion of this respectable body." 

SUNDAY, JUNE 24, 1787 

Washington noted : 

"Dined at Mr. Morris* and spent the evening at Mr. 
Meredith's (in drinking tea only)." 

1 See also Pennsylvania Gazette, June 27 ; Independent Chronicle (Boston), July 
12. 1787. 



MONDAY, JUNE 25, 1787 39 

MONDAY, JUNE 25, 1787 

IN CONVENTION 
Charles Pinckney's Speech 

This day was made memorable by a speech of one 
of the youngest of the delegates, Charles Pinckney of 
South Carolina. With the exception of those by 
Madison and Wilson, no such powerful, eloquent, and 
brilliant contribution had been made. Into the debates 
which had so largely turned on devotion to the States, 
Pinckney now breathed a spirit of Americanism. He 
pointed out the peculiarly favorable situation of this 
country, provided it should have an adequate system 
of Government a country in which "every member 
of the society almost will enjoy an equal power of 
arriving at the supreme office, and consequently of 
directing the strength and sentiments of the whole 
community" a country "in which the whole com- 
munity will enjoy in the fullest sense that kind of 
political liberty which consists in the power the members 
of the States reserve to themselves of arriving at the 
public offices, or at least of having votes in the nomi- 
nation of those who fill them", "a new extensive 
country containing within itself the materials of forming 
a Government capable of extending to its citizens all the 
blessings of civil and religious liberty, capable of making 
them happy at home." This, said he, was "the great 
end of a Republican form of Government." In such a 
country, though there might be three classes of men 
the professional, the commercial, and the landed (or 
"owners and cultivators of the soil"), there is, after all, 
"but one great and equal body of citizens among whom 
there are no distinctions of rank and very few or none 
of fortune." This speech has been well described as 
follows : l 

1 Constitutional History of the United States (1901), by Francis N. Thorpe. I, 
404-405. 



240 THE SMALL VERSUS THE LARGE STATES 

"Hitherto, whenever a delegate had thought it necessary 
to support an opinion by historical examples, he had referred 
to the republics and confederacies of earlier times, or to the 
British government. Pinckney brought the mind of the 
Convention back to America and emphasized the unique 
situation of its people. He would not break with the past, 
yet would found a Government adapted to the wants of a new 
country and a new Nation. . . . To them [the delegates], 
there was no American history in the sense in which these 
words are now understood. The Government they were 
forming would be an experiment, and the people were yet to 
prove it administrable. Pinckney's speech was, therefore, 
the more remarkable because of its American tone. . . . 
It raised their minds to a clearer concept of the unique situa- 
tion of the American people, and to the conclusion that a 
Government should be formed adapted to such a country as 
ours. Hamilton not only believed that the British Con- 
stitution was the best in existence, but he wished it copied 
as closely as possible in America. Pinckney acknowledged 
its excellence, but showed with larger wisdom that it was not 
adapted to the American people. From the time Pinckney 
spoke, and only a fragment of his speech is preserved, the 
members must have been persuaded, if any were yet in 
doubt, that the Constitution which they were making must 
be American in character." 

OUT OF CONVENTION 
Washington noted : 

"Attended Convention. Dined at Mr. Morris's, drank 
tea there, and spent the evening in my chamber." 

Robert Morris wrote to his sons (Robert and 
Thomas), then in Leipsic : 1 

"General Washington is now our guest, having taken up 
his abode at my house during the time he is to remain in this 
city. He is President of a Convention of Delegates from the 
thirteen States of America, who have met here for the pur- 

1 Maria White Mrs. Robert Morris (1878), by Charles Henry Hart. 



TUESDAY, JUNE 26, 1787 241 

pose of revising, amending, and altering the Federal Govern- 
ment. There are gentlemen of great abilities employed in 
this Convention, many of whom were in the First Congress, 
and several that were concerned in forming the Articles of 
Confederation now about to be altered and amended. You, 
my children, ought to pray for a successful issue to their 
labours, as the result is to be a form of Government under 
which you are to live, and in the administration of which 
you may hereafter probably have a share, provided you 
qualify yourselves by application to your studies. The law 
of Nations, a knowledge of the Germanic system and the 
Constitutions of the several Governments in Europe, and 
an intimate acquaintance with ancient and modern history 
are essentially necessary to entitle you to participate in the 
honor of serving a free People in the administration of this 
Government/' 

TUESDAY, JUNE 26, 1787 

IN CONVENTION 
Terms of Office of Members of the Legislature 

On this day, the question of the terms of office for 
members of the National Legislature was finally 
determined. This subject had been discussed in the 
Committee of the Whole, on June 12. For members 
of the first branch, there had been great insistence 
on annual elections. In Colonial times, the annual 
session of the popular Assembly had been the only 
check which the people had had on the Royal Gover- 
nors ; l and though this reason for such frequent 
elections had now disappeared, the tradition still 
persisted. Moreover, the history of the English Parlia- 
ment and the extension of its term from two to seven 
years by the Septennial Act of 1716 in order to defeat 
the will of the people, had impressed upon the delegates 
the importance of limiting the duration of the terms 

1 See also The Federalist, No. 51. 



THE SMALL VERSUS THE LARGE STATES 

of the Legislature. Elbridge Gerry of Massachusetts 
said that "he considered annual elections as the only 
defence of the people against tyranny." Madison, 
on the other hand, believed that at least three years 
would be required for Representatives to gain a knowl- 
edge of the needs and interests of the other States; 
and his arguments prevailed. Accordingly, the Com- 
mittee voted for triennial elections. For Senators, 
a seven year term was voted. Richard D. Spaight of 
North Carolina, Randolph, and Madison urged this 
long term on the ground that the object of the Senate 
was to give stability to the Government and to check 
excesses in the first branch of the National Legislature, 
though the New England States again favored a shorter 
term. When the Convention debated the Committee's 
report, on June 21, the delegates changed their minds 
with reference to members of the first branch, and voted 
for biennial elections instead of triennial, as a com- 
promise with those who still urged annual. "The 
people were attached to frequency of elections," said 
Randolph. "The Representatives ought to return 
home and mix with the people. By remaining at the 
seat of Government they would acquire the habits of the 
place which might differ from those of their constitu- 
ents," said Roger Sherman. On the other hand, 
Hamilton said that "frequency of elections tended to 
make the people listless to them, and to facilitate the 
success of little cabals. This evil was complained of in 
all the States." 

The length of the term of office for Senators was taken 
up by the Convention, on June 25. The term of the 
Senate in Maryland was five years ; in New York and 
Virginia, four years ; in Delaware, three years ; and in 
South Carolina, two years. Gorham of Massachusetts 
urged that the seven year term be cut down to four 
years, and that one quarter of the Senate be elected 



TUESDAY, JUNE 26, 1787 243 

each year. General Pinckney concurred. Randolph 
supported the idea of division of Senators into classes 
and of rotation as " favorable to the wisdom and 
stability of the corps, which might possibly be always 
sitting and aiding the Executive." Such a system of 
rotation prevailed in the Senates under the State 
Constitutions of New York, Virginia, and Delaware. 
Hugh Williamson of North Carolina wisely suggested 
a term of six years as more convenient for rotation than 
seven. On this June 6, Gorham moved a six year 
term, and that the rotation be triennial. George Read 
of Delaware moved a nine year term, one third going 
out triennially (though Read and Robert Morris really 
agreed with Hamilton in preferring a Senate elected 
" during good behaviour ") . Charles Pinckney opposed 
six years, fearing that the members will "be too long 
separated from their constituents, and will imbibe 
attachments different from that of the State." 1 Madi- 
son made an eloquent speech, urging the Convention 
to consider the ends to be served by a Senate, and 
arguing that considerable duration should be given to 
that branch, which, "respectable for its wisdom and 
virtue", might be a check to attempts of majorities to 
oppress minorities. Wilson concurred. On the other 
side, Sherman and Gerry still stood out for frequent 
elections. The nine year term was then defeated ; and 
the Convention adopted Williamson's and Gorham's 
proposal of a six year term, one third to go out bi- 
ennially. 

OUT OF CONVENTION 
Washington noted : 

"Attended Convention. Partook of a family dinner with 
Govr. Randolph and made one of a party to drink tea at 
Gray's Ferry." 

1 As reported in Yatea' Notes. 



244 THE SMALL VERSUS THE LARGE STATES 

A letter from a gentleman in Virginia in the Gazetteer 
commented on the value of the Convention's plan for a 
Congress with two branches : 1 

"It is not owing to a want of knowledge, if the present 
respectable Convention fail to establish an energetic Govern- 
ment which will diffuse equal advantages to the remotest 
corner of the United States. It will be owing to the narrow 
minds or selfish views of little politicians, perhaps corrupted 
by the influence of a foreign power, who hates to see the 
United States rise into importance and respect among the 
nations of the earth. It is thought that the persons who 
opposed the impost and labored for emissions of paper were 
ignorant of or inimical to the interest of America. The idea 
of having the supreme Federal power divided into two or 
more branches meets with universal approbation it will 
be a check on the intriguing spirit of the members of one 
House, and will be the means of bringing the deliberations 
of the supreme power to greater maturity it will be a 
guard against precipitancy and temerity of council. The 
advantage of two branches has been conspicuous lately in 
Maryland the firmness of their Senate saved their country 
from perdition. I reprobate the idea of a division of the 
States into three or four republics. The greatest enemy of 
America could have suggested nothing worse or more 
destructive. . . . You tell me that you suspect a combi- 
nation against the Federal Government in Rhode Island 
and New York. The majority of the House of Delegates 
of Rhode Island have lost all character and even shame 
itself. Yet you see there are honest men in that State. 
The Judges behaved handsomely in the affair of the Tender 
Law, and the minority have sent some gentlemen to the 
Convention, who no doubt will meet with all the attention 
they can expect. . , . Such is the present temper of the 
Americans and the resentment for the contempt they have 
so universally incurred on account of the weakness of 
government is so great, that I believe, upon my honour, 

1 See also Pennsylvania Gazette, June 27 ; Virginia Independent Chronicle, July 
4; Massachusetts Centinel, July 7; Salem Mercury, July 10, 1787. 



WEDNESDAY, JUNE 27, 1787 245 

the Supreme Federal Power, after an adequate government 
is determined upon, may command the service of 20,000 
volunteers for a year without pay to execute these orders 
and fix Government upon a firm and permanent basis." 

It is interesting to note the reference in this letter to 
the action of the Judges in Rhode Island. The decision 
of the Court in Trevett v. Weeden y in the fall of 1786, 
holding the paper money statute of that State unconsti- 
tutional on the ground that it failed to provide a jury 
trial had been given wide publicity in the newspapers 
of all the States. 1 Advertisements of a pamphlet 
containing an account of the case had appeared in the 
Pennsylvania Packet, in the opening weeks of the Con- 
vention. 2 The delegates had already discussed this 
power of Courts to hold statutes unconstitutional on 
two occasions during this month of June, and were 
about to discuss it again in the debates over the Judi- 
ciary in July. 3 

WEDNESDAY, JUNE 27, 1787 

IN CONVENTION 
Luther Martin's Speech 

The Convention, having on previous days disposed of 
those details relating to the National Legislature which 

1 A letter from Providence on this subject was widely republished, stating that : 
"The happiness of individuals as well as the public safety depends more on the 
Superior Court than many people apprehended. They are a shield, nay a bulwark 
to their fellow citizens against all kinds of injustice and oppression. It is not only 
their duty to controul and restrain all inferior Courts ; but to discern the bound- 
aries of the power both of State and Federal legislation." See Pennsylvania Packet, 
Jan. 10, 1787 ; Pennsylvania Journal, May 2, 1787 ; Independent Gazetteer, Jan. 12, 
May 3, 1787; see also New Hampshire Spy, Feb. 16, 1787. 

2 See Pennsylvania Packet, April 25, May 2, 9, 16, 23, 1787 : "Just come to hand 
and to be had of J. Dodson, Bookseller, Second Street, and J. Cruikshank, Market 
Street, Price 2 sh. 6 d. The Case, Trevett against Weeden, on information and 
complaint for refusing paper bills in payment for butcher's meat, etc. Tried before 
the honorable Superior Court in the County of Newport, Rhode Island, Also The 
Case of the Judges of said Court before the General Assembly, on citation for dis- 
missing said complaint. By James M. Varnum, Esq., Counsellor at Law, etc." 

8 James Madison, in his speech in the Convention, July 17, 1787, referred to the 
case of Trevett v. Weeden. 



246 THE SMALL VERSUS THE LARGE STATES 

gave rise to less contention term of office, qualifica- 
tions, re-eligibility to election, etc., now came face to 
face with the crucial question : What should be the 
rules of suffrage in the two branches, or, in other words, 
should they be chosen in proportion to the respective 
populations of the States; or should each State be 
equally represented? On June 11, the Committee of 
the Whole had voted that the former system should 
apply to both Houses ; but with regard to the Senate, 
the vote was close, six States to five, Connecticut, 
New Jersey, Delaware, and Maryland, together with 
New York, voting for equality. "It is apparent, " says 
Farrand, "that this is nearly the same division which 
had manifested itself in the old Congress, notably in 
connection with the adoption of the Confederation, and 
the negotiations over the treaty of peace." 1 It has 
been customary for historians to depict this as a struggle 
between the larger and the smaller States, yet New 
York, of course, can hardly be classed as a smaller 
State. It would be more accurate to say that it was 
a struggle between the South, aided by Pennsylvania 
and Massachusetts, and the rest of the Union. 

The question as to the rule of suffrage was presented, 
on this day, with reference solely to the first branch of 
the Legislature ; and as to this most of the delegates 
had practically made up their minds, and were ready 
to vote. With the Convention impatient to meet the 
issue, "Luther Martin of Maryland chose this most 
inopportune time and in a spell of hot weather, too, to 
deliver a lengthy harangue." He spoke for three hours, 
until exhausted by the "heat of the season" and then 
continued on the next day. Of this speech, Ellsworth 
wrote later that "it might have continued two months, 
but for those marks of fatigue and disgust you saw 
strongly expressed on whichever side of the House you 

1 The Framing of the Constitution (1913), by Max Farrand, pp. 81-82. 



WEDNESDAY, JUNE 27, 1787 247 

turned your mortified eyes." 1 Yates stated that 
Martin's arguments "were too diffuse and in many 
instances desultory", so that it was not possible "to 
trace him through the whole, or to methodize his ideas 
into a systematic or argumentative arrangement/ 5 
Even the moderate and courteous Madison reported 
that Martin spoke "with much diffuseness and consider- 
able vehemence." The theme of this fatiguing speech 
was, that "the General Government was meant merely 
to preserve the State Governments and not to govern 
individuals, and that its powers should be kept within 
narrow limits"; that justice and freedom, as well as 
policy, demanded that States, equally sovereign and 
free, should retain an equal vote. As Martin was one 
of the chief upholders of State Sovereignty, it is evident 
that the advocates of that cause in the Convention were 
far inferior to the Nationalists in debating ability. 

OUT OF CONVENTION 

On this day, William Samuel Johnson, one of the 
Connecticut delegates, wrote to his son as to the great 
diversity of sentiment in the Convention : 

"We have delegates from eleven States actually assembled 
consisting of many of the most able men in America. . . . 

1 See letter of "The Landholder" in Maryland Journal, Feb. 29, 1788, in which 
he referred to : "A sarcastic reply from the pleasant Mr. Gerry, in which he admired 
the strength of your lungs and profound knowledge in the first principles of govern- 
ment; mixing and illustrating his little remarks with a profusion of those 'hems' 
that never fail to lengthen out and enliven his oratory. This reply (from your 
intimate acquaintance), the match being so equal and the contrast so comic, had the 
happy effect to put the House in good humour and leave you a prey to the most 
humiliating reflections. But this did not teach you to bound your speeches by the 
lines of moderation ; for the very next day you exhibited without a blush another 
specimen of eternal volubility. . . . You cannot have forgotten that by such 
ignorance in politics and contradictory opinions you exhausted the politeness of the 
Convention, which at length prepared to slumber when you rose to speak ; nor can 
you have forgotten you were only twice appointed a member of a Committee or that 
these appointments were made merely to avoid your endless garrulity, and if pos- 
sible to lead you to reason, by the easy road of familiar conversation." 

Gerry in the New York Journal, April 30, 1788, denied that he ever made any 
reply to Martin, as charged by Ellsworth. And see Martin's reply in Maryland 
Journal, March 18, 1788, 



248 THE SMALL, VEKbUS THIS LAKUU STATES 

It is agreed that for the present our deliberations shall be 
kept secret, so that I can only tell you that much information 
and eloquence has been displayed in the introductory 
speeches, and that we have hitherto preserved great temper- 
ance, candor, and moderation in debate, and evinced much 
solicitude for the public weal. Yet, as was to be expected, 
there is great diversity of sentiment, which renders it 
impossible to determine what will be the result of our 
deliberations." 

For the second time in two consecutive days, the 
attention of the delegates was directed to references 
in the newspapers to the subject of the power of the 
Courts to declare statutes invalid ; for the Packet, this 
day, published a despatch from Newbern, North Caro- 
lina, announcing the decision of the Supreme Court of 
that State in Bayard v. Singleton, a case involving the 
constitutionality of a State law which abolished jury 
trial in certain classes of cases, in which the Judges held 
the law invalid. 1 

1 " May 30 : Yesterday was agitated the celebrated question whether the suits 
brought for the recovery of confiscated property should be dismissed, according to 
the Act of Assembly commonly called the Quieting Act, when the Court gave their 
opinion in the negative." 

It is to be noted that the Maryland Gazette of July 3, and the Virginia Independent 
Chronicle of July 4, published a long detailed description of this case and its deci- 
sion. So that, before the middle of July, all the North Carolina, Maryland, and 
Virginia members of the Convention must undoubtedly have been made familiar 
with the Court's action. 

See also Exchange Advertiser (Boston), July 27, 1786, quoting as a despatch 
from Princeton, N. J., July 6, an "extract of a letter from a gentleman in Newbern 
(North Carolina) to his father here, dated June 9, 1786," as follows : "Our Superior 
Court has lately risen here. Among the causes which came before the Court, 
there was one which excited great agitation among the people. At the last session 
of Assembly an act was passed directing that purchasers from commissioners at the 
sales of confiscated property under the confiscation laws should not be liable to 
suits at law for that property, and that all suits already brought by persons whose 
property was confiscated or their representatives should be dismissed on motion. 
Under this law, a motion was made for the dismission of a suit brought by Bayard 
and wife of New York for the best house with wharves, etc., in this town, formerly 
the property of a Mr. Connel who in seventy-seven had conveyed this property 
to his daughter, now Mrs. Bayard. The Judges who have taken it into their heads 
that they have a right to determine that an Act of Assembly is no law and not 
to be obeyed as such, when in their opinion unconstitutional, did not dismiss the 
suits ; indeed they would give no opinion immediately, but evidently showed their 
disinclination to the laws having any operation. This threw the people into a 



THURSDAY, JUNE 28, 1787 249 

On this day, the Gazetteer published a highly favorable 
description of the delegates to the Convention, which 
was copied in the papers in many States : x 

"The present Federal Convention, says a correspondent, 
is happily composed of men who are qualified from education, 
experience, and profession for the great business assigned 
to them. The principles, the administrative or executive 
duties of government, will be pointed out by those gentlemen 
who have filled or now fill the offices of first Magistrate in 
several of the States while the commercial interests of 
America will be faithfully represented and explained by the 
mercantile part of the Convention. These gentlemen are 
assembled at a most fortunate period in the midst of 
peace with leisure to explore the perfections or defects 
of all the governments that ever existed, with passions 
uncontrouled by the resentments and prejudices kindled by 
the late war and with a variety of experiments before 
them of the feebleness, tyranny, and licentiousness of our 
American forms of government. Under such circumstances, 
it will not be difficult for them to frame a Federal Consti- 
tution that will suit our country." 

THURSDAY, JUNE 28, 1787 

IN CONVENTION 

On this day, seventeen days after the Committee of 
the Whole had voted against equal representation for 
the States in the National Legislature, the direct issue 
was precipitated by a motion made by Lansing of 
New York, seconded by Jonathan Dayton of New Jer- 
sey, to reverse the action of the Committee. Madison 
and Wilson again reiterated the arguments against such 
a return to the system which had proved so unsatisfac- 
tory under the Articles of Confederation; and they 

great ferment, and thirty or forty defendants similarly circumstanced determined 
to go into Court in a body and demand a dismission of their suits. The Court, 
finding the disposition of the people, thought proper to soften a good deal what 
they had said, but deferred giving their opinion till the succeeding Court." 
1 Pennsylvania Packet, June 23 ; Connecticut Courant, July 9, 1787. 



250 THE SMALL VERSUS THE LARGE STATES 

again tried to allay the dread by the small States of a 
possible combination against them of the large States. 
Virginia, Massachusetts, and Pennsylvania, said 
Madison, had no common interests, either in point of 
manners, religion, or staple productions, their staples 
being respectively tobacco, fish, and flour ; and hence 
they had no motive for combining. It was evident, 
however, that the delegates from the small States were 
not to be moved by argument. 

It was at this juncture that Doctor Franklin made 
his famous speech suggesting that the sessions be 
opened with prayer. "The small progress we have 
made after four or five weeks' close attendance, and 
continual reasonings with each other," said he, "our 
different sentiments on almost every question . . . 
is, methinks, a melancholy proof of the imperfection 
of human understanding." And he continued : 

"In this situation of this Assembly, groping, as it were, in 
the dark to find political truth, and scarce able to distinguish 
it when presented to us, how has it happened, that we have 
not hitherto once thought of humbly applying to the Father 
of lights to illuminate our understandings? ... I have 
lived, sir, a long time, and the longer I live, the more convinc- 
ing proofs I see of this truth that God governs in the affairs 
of men. And if a sparrow cannot fall to the ground without 
his notice, is it probable that an empire can rise without his 
aid? ... I also believe that without his concurring aid 
we shall succeed in this political building no better than the 
builders of Babel. We shall be divided by our little, partial, 
local interests; our projects will be confounded, and we 
ourselves shall become a reproach and bye word down to 
future ages. And what is worse, mankind may hereafter, 
from this unfortunate instance, despair of establishing 
Governments by human wisdom and leave it to chance, 
war and conquest." 

Franklin's motion that prayers be offered every 
morning in the Convention was seconded by Sherman. 



THURSDAY, JUNE 28, 1787 251 

Thirty -eight years later, Jonathan Dayton, the young- 
est member of the Convention, wrote a letter giving 
his recollection of this episode : l 

"The Doctor sat down, and never did I behold a counte- 
nance at once so dignified and delighted as was that of 
Washington, at the close of this address. Nor were the 
members of the Convention generally less affected. The 
words of the venerable Franklin fell upon our ears with a 
weight and authority even greater than we may suppose 
an oracle to have had in a Roman Senate. A silent admira- 
tion superseded, for a moment, the expression of that 
assent and approbation which was strongly marked on 
almost every countenance." 

Although Dayton stated in his letter that the motion 
was carried, such was not the fact. Opposition arose 
on various grounds lack of funds to pay chaplains, 
dislike of offending the Quaker usage, fear lest the 
public might be led to believe that dissensions made 
the step necessary. Accordingly, as Franklin himself 
recorded, "the Convention, except three or four persons, 
thought prayers unnecessary", and no action was taken 
on his motion. 2 

1 See letter of Jonathan Dayton to William Steele, written in Sept., 1825. and 
printed in the National Intelligencer, Aug. 26, 1826, reprinted in Farrand, III, 46, 
and the Constitution of the United States (1924), by James M. Beck, pp. 125 et seq. 
The letter incorrectly states that the episode occurred after the vote had been taken 
as to the Senate and is also evidently erroneous in other details. 

2 Madison wrote to T. S. Grimke, Jan. 6, 1834, that Dayton's letter was inaccu- 
rate in many points: "You wish to be informed of the errors in your pam- 
phlet alluded to in my last. The first related to the proposition of Doctor Franklin 
in favor of a religious service in the Federal Convention. The proposition was 
received and treated with the respect due to it ; but the lapse of time which had 
preceded, with considerations growing out of it, had the effect of limiting what was 
done, to a reference of the proposition to a highly respectable Committee. This 
issue of it may be traced in the printed Journal. The Quaker usage, never discon- 
tinued in the State, and the place where the Convention held its sittings, might not 
have been without an influence, as might also the discord of religious opinions within 
the Convention, as well as among the clergy of the spot. The error into which you 
had fallen may have been confirmed by a communication in the National Intelli- 
gencer some years ago, said to have been received through a respectable channel 
from a member of the Convention. That the communication was erroneous is 
certain ; whether from misapprehension or misrecollection, uncertain.*' 

Madison wrote to Jared Sparks, April 8, 1831 : "It was during that period of 



THE SMALL VERSUS THE LARGE STATES 

Dayton, in the letter giving his recollections, 
described another interesting suggestion for an adjourn- 
ment of the Convention for three days, which, he states, 
was made by Franklin on this day. As Madison makes 
no mention of it, Dayton probably confused it with 
action on a later day ; but as described by him, it is so 
entirely in Franklin's wise and conciliatory vein, that 
it must have occurred at some point in the Convention. 
In support of his motion, said Dayton, Franklin said : 
"And I would earnestly recommend to the members 
of this Convention that they spend the time of this 
recess, not in associating with their own party and 
devising new arguments to fortify themselves in their 
old opinions, but that they mix with members of 
opposite sentiments, lend a patient ear to their reason- 
ings, and candidly allow them all the weight to which 
they may be entitled; and when we assemble again, 
I hope it will be with a determination to form a 
Constitution, if not such an one as we can individually 
and in all respects approve, yet the best which, under 
the existing circumstances, can be obtained." Here, 
said Dayton, "the countenance of Washington bright- 
ened and a cheering ray seemed to break in upon the 
gloom which had recently covered our political horizon." 

William Few, one of the delegates from Georgia, 
many years later, gave his impressions of this critical 
stage of the Convention : l 

"The modification of the State Rights, the different 
interests and diversity of opinions seemed for sometime to 
present obstacles that could not be surmounted. After 
about three weeks deliberation and debating, the Convention 
had serious thoughts of adjourning without doing anything. 
All human efforts seemed to fail. Doctor Franklin proposed 

gloom that Dr. Franklin made the proposition for a religious service in the Con- 
vention, an account of which was so erroneously given, with every semblance of 
authenticity, through the National Intelligencer, several years ago." 

1 Autobiography of William Few, written about 1816, Farrand, III, 423. 



THURSDAY, JUNE 28, 1787 253 

to appoint a chaplain and implore Divine assistance, but 
his motion did not prevail. It was an awful and critical 
moment. If the Convention had then adjourned, the 
dissolution of the Union of the States seemed inevitable. 
This consideration, no doubt, had its weight in reconciling 
clashing opinions and interests. It was believed to be of 
the utmost importance to concede to different opinions so 
far as to endeavor to meet opposition on middle ground and 
to form a Constitution that might preserve the Union of the 
States. On that principle of accommodations, the business 
progressed, and after about three months labor, a plan of 
Constitution was formed on principles which did not alto- 
gether please anybody, but it was agreed to be the most 
expedient that could be devised and agreed to." 

OUT OF CONVENTION 
Washington noted : 

"Attended Convention. Dined at Mr. Morris's in a 
large company (the news of his Bills being protested, arriving 
last night a little malapropos). Drank tea there and spent 
the evening in my chamber." 

The sentiment of the people in Virginia may be seen 
from a letter of this date from Chesterfield, Virginia 
(quoted from a Virginia paper), which stated that "all 
persons impatiently wait the result of the deliberations 
of the collective wisdom of our vast Continent now 
convened at Philadelphia. In the rectitude of the 
measures essential to our future well-being, by them 
finally recommended to be pursued, from the tried 
integrity of most of the characters of which this august 
body is composed, and crowned with the approba- 
tion of our still immutable Washington, I doubt not 
but we may most cheerfully repose the most implicit 
confidence." l 

1 Reprinted in Pennsylvania Packet, Aug. 18, 1787. 



254 THE SMALL VERSUS THE LARGE STATES 
FRIDAY, JUNE 29, 1787 

IN CONVENTION 
Proportional Representation in the House 

As soon as the Convention met, Dr. Johnson of 
Connecticut stated that the controversy seemed to be 
endless, owing to the fundamentally different views 
taken by each side of the nature of a State one side 
viewing it merely as a district of people composing one 
political Society, the other side considering a State as 
a distinct, sovereign, political body. He, therefore, 
renewed the proposal of a compromise made several 
weeks before by his colleague, Sherman that in one 
branch of the Legislature the people be represented; 
in the other, the State. 1 Gorham said that though 
"a rupture of the Union would be an event unhappy for 
all, surely the large States would be least unable to take 
care of themselves." He argued that the small States, 
therefore, should have the greater interest in promoting 
a Union that Union which he considered "as neces- 
sary to their happiness and a firm General Government 
as necessary to their Union." Madison "entreated 
the gentlemen representing the small States to renounce 
a principle which was confessedly unjust and which 
could never be admitted. . . . He prayed them to 
ponder well the consequences of suffering the Confeder- 
acy to go to pieces." Hamilton also pointed out the 
consequences of a dissolution of the Union, and said 
that this was "the critical moment" for forming such 
a Government as should give stability and strength to 
make us respectable abroad, as well as tranquil and 

1 Dr. Johnson was believed to have influence with the Southern delegates. Two 
years earlier, Samuel Blachley Webb of Connecticut had written to Jeremiah 
Wadsworth, March 9, 1785: "I flatter myself, a little pains might induce Dr. 
Johnson to return again to Congress. It certainly would have a happy effect. . . . 
Doctor Johnson has, I believe, much more influence than either you or myself. . . . 
The Southern Delegates are vastly fond of him, and I believe he would do more 
good than any other man from the State." 



FRIDAY, JUNE 29, 1787 255 

happy at home. "It is a miracle that we are here now, 
exercising our tranquil and free deliberations on the 
subject. It will be madness to trust to future miracles." 
Gerry said that "the fate of the Union will be decided 
by the Convention," and lamented that "instead of 
coming here like a band of brothers belonging to the 
same family, we seemed to have brought with us the 
spirit of political negotiations." 

When the vote was taken the Convention adhered 
to the action already taken in the Committee of the 
Whole on June 11, and voted against equality of 
representation in the first branch of the Legislature, 
six States to four (Connecticut, New York, New 
Jersey, and Delaware dissenting, and Maryland being 
divided). Thus, over two weeks of discussion had 
changed not a single vote, and the larger States re- 
mained unalterably opposed to yielding an iota on this 
principle. The small States still hoped, nevertheless, 
that some compromise might yet be possible by which, 
in the Senate at least, equal representation of the States 
might be allowed; and now, for the third time, such 
a compromise was suggested by Connecticut's delegates 
this time, by Ellsworth. 

OUT OF CONVENTION 

Joseph Jones wrote to Madison, on this day : 

"We are not to know the result of your deliberations for 
five or six weeks to come, as from accounts your session will 
continue until some time in August. Some of your anxious 
members will become despondent from so long absence from 
home. How does the Dr. (McClurg) stand it? Enjoy 
himself as usual or cast longing looks towards Richmond ? 
Mrs. McClurg is and looks well, and will, I dare say, on his 
return prove at least a full match for him. Mrs. Randolph 
and the children have, I hope, got up safe. Present her, 
if you please, my compliments. Tell the Governor, we shall 



256 THE SMALL VERSUS THE LARGE STATES 

not venture to speculate in indents or any other Continental 
securities. Had we the power and the means to follow a 
certain gentleman's advice, the adoption of his plan would, 
with me at least, require other authority to support it." 

SATURDAY, JUNE 30, 1787 
IN CONVENTION 

At the opening of the session, Judge Brearley of New 
Jersey, moved that the President of the Convention 
write to Governor Sullivan of New Hampshire, urging 
the attendance of the delegates from that State. Rut- 
ledge, King, and Wilson were opposed (although it is 
to be noted that General Knox, an ardent supporter 
of the new Constitution, had already entreated Gover- 
nor Sullivan to expedite his delegates). The motion 
was defeated. 

The debate now continued on Ellsworth's motion; 
and the delegates from the large States* and strong 
Nationalists, encouraged by the previous day's vote, 
seemed inclined to press their advantage Wilson, 
Madison, and King bearing the brunt of the attack. 
"Can we forget for whom we are forming a Govern- 
ment?" asked Wilson. "Is it for men, or for the 
imaginary beings called States." A Government, said 
he, founded on a principle by which a number of States 
containing a minority of the people could control those 
containing a majority, "can be neither solid nor last- 
ing." King said that the reform would be "nugatory 
and nominal only, if we should make another Congress 
of the proposed Senate." Convinced of the obstinacy 
of the small States, he considered, despairingly, that we 
were already cut asunder, sacrificed to the "phantom 
of State Sovereignty." He conceived this to be "the 
last opportunity of providing for its (America's) liberty 
and happiness"; and he was amazed that "when a 
just Government founded on a fair representation of 



SATURDAY, JUNE 30, 1787 257 

the people of America was within our reach, we should 
renounce the blessing from an attachment to the ideal 
freedom and importance of States." Madison now laid 
his finger on the real and essential dividing line be- 
tween the parties in the Convention. He stated that 
there was no reason for the small States to fear a 
combination against them of the large States from the 
North and from the South; because "the States were 
divided into different interests, not by their difference 
of size, but by other circumstances ; the most material 
of which resulted partly from climate, but principally 
from the effects of having or not having slaves. These 
two causes concurred in forming the great division of 
interests in the United States. It did not lie between 
the large and small States ; it lay between the Northern 
and Southern." * On the basis of such a line of division, 
Madison suggested as a compromise that in the Senate, 
the Southern States might count the whole number of 
their slaves in determining the population to be repre- 
sented ; and in the House, the population should be 
regarded as including only three fifths of the slaves. 
Franklin also proposed a compromise of a somewhat 
impractical nature, but accompanied his suggestion 
with these shrewd words : "When a broad table is to 
be made, and the edges of planks do not fit, the artist 
takes a little from both, and makes a good joint. In 
like manner, here, both sides must part with some of 
their demands, in order that they may join in some 
accommodating proposition." In spite of these concili- 
atory suggestions, the delegates from the small States 
became more insistent and more violent in their 
language, in adhering to their own view all except- 
ing Ellsworth, who said that his State was "entirely 

1 Opinions were expressed to the same effect as to the real division being between 
the Northern and Southern States, by Charles Pinckney, June 26, July 2 ; Rufus 
King, July 10 ; G. Morris, July 13 ; George Mason, July 23 ; General Charles C. 
Pinckney, July 24. 



258 THE SMALL VERSUS THE LARGE STATES 

Federal in her disposition", and that he himself was not 
governed by local views, but that by giving up the 
principle of equality of the States, we were "razing the 
foundations of the building when we need only repair 
the roof"; he was willing that in one branch of the 
Legislature the principle should be abandoned, but that 
it must be retained in the other, so that "the few should 
have a check on the many." Young Dayton of New 
Jersey, however, stated that "declamation have been 
substituted for argument" and that he considered the 
proposed system "as a novelty, an amphibious 
monster", which would never be received by the 
people. Gunning Bedford of Delaware made a speech 
couched in very extreme language. 1 He stated that 
the large States were not impartially considering the 
question, on principle, but were influenced by ambition 
for power. "Even the diminutive State of Georgia 
has an eye to her future wealth and greatness ; South 
Carolina, puffed up with the possession of her wealth 
and negroes, and North Carolina are all, from different 
views, united with the great States . . . closely united 
in one scheme of interest and ambition." And he 
exclaimed: "I do not trust you, gentlemen. If you 
possess the power, the abuse of it could not be checked. 
. . . We have been told, with a dictatorial air, that 
this is the last moment for a fair trial in favor of a good 
Government" ; but "the large States dare not dissolve 
the Confederation. If they do, the small ones will find 
some foreign ally of more honor and good faith who will 
take them by the hand and do them justice. He did 
not mean by this to intimidate or alarm. It was a 
natural consequence, which ought to be avoided by 
enlarging the federal powers, not annihilating the 
federal system." Such alarming words brought King 

1 Yates in his Notes gives this speech more fully than does Madison, and some of 
the passages quoted are from the former's report. 



SATURDAY, JUNE 30, 1787 259 

to his feet, protesting at the intemperance and 
vehemence indulged in by Bedford, who "had declared 
himself ready to turn his hopes from our common 
country and court the protection of some foreign land. 
. . . He was grieved that such a thought had entered 
into his (Bedford's) heart. He was more than grieved 
that such an expression had dropped from his lips. 
The gentleman could only excuse it on the score of 
passion. For himself, whatever might be his distress, 
he would never court relief from a foreign power." l 
It was evident that there was considerable nervous 
tension in the Convention, and after King's speech it 
adjourned for the day. Fortunately, just as three 
weeks before, a Sunday intervened, providing a cooling 
interval before the vote on this critical subject in the 
Committee of the Whole on June 11, so now another 
Sunday afforded the same opportunity to the Con- 
vention. 

OUT OF CONVENTION 
Washington noted : 

"Attended Convention. Dined with a Club at (the 
Cold Spring) Springsbury, consisting of several associated 
families of the City, the Gentlemen of which met every 
Saturday accompanied by the females of the families every 
other Saturday. This was the ladies day." 

George Mason wrote to Lieutenant Governor Beverly 
Randolph : 2 

"The Convention having resolved that none of their 
proceedings should be communicated during their sittings, 

1 Bedford, on July 5, explained that he had been misunderstood; "that some 
allowance ought to be made for the habits of his profession in which warmth was 
natural and sometimes necessary"; that "he did not mean that the small States 
would court the aid and interposition of foreign powers ", but that when, by the 
acts of the large States, the federal compact should be dissolved, the consequence 
would be that "foreign Nations having demands on this Country would find it 
their interest to take the small States by the hand in order to do themselves justice." 

- Calendar of Virginia State Papers, IV, 310. 



260 THE SMALL VERSUS THE LARGE STATES 

puts it out of my power to give you any particular infor- 
mation upon the subject. Festina lente seems hitherto to 
have been our maxim. Things, however, are now drawing 
to that point on which some of the fundamental principles 
must be decided, and two or three days will probably enable 
us to judge which at present is very doubtful whether 
any sound and effectual system can be established or 
not. If it cannot, I presume we shall not continue here 
much longer; if it can, we shall probably be detained till 
September. 

I feel myself disagreeably circumstanced in being the only 
member of the Assembly, in the Virginia delegation, and, 
consequently, if any system shall be recommended by the 
Convention, that the whole weight of explanation must fall 
upon me." 

SUNDAY, JULY 1, 1787 

Washington noted simply that he "dined and spent 
the evening at home"; and in view of the tense 
situation which prevailed in the Convention on the 
preceding day, and of the fact that on the next day 
the vote was to be taken on the critical question as to 
equality of representation in the Senate, it is not sur- 
prising that, on this day, he wrote to David Stuart his 
views, in a not very hopeful mood as to the situation : 

"Happy indeed would it be, if the Convention shall be 
able to recommend such a firm and permanent Government 
for this Union, that all who live under it may be secure in 
their lives, liberty, and property ; and thrice happy would 
it be, if such a recommendation should obtain. Everybody 
wishes, everybody expects something from the Convention ; 
but what will be the final result of its deliberation the book 
of fate must disclose. Persuaded I am, that the primary 
cause of all our disorders lies in the different State Govern- 
ments, and in the tenacity of that power which pervades 
the whole of their systems. Whilst independent sovereignty 
is so ardently contended for, whilst the local views of each 



MONDAY, JULY 2, 1787 261 

State, and separate interests by which they are too much 
governed, will not yield to a more enlarged scale of politics, 
incompatibility in the laws of different States, and dis- 
respect to those of the General Government, must render 
the situation of this great country weak, inefficient, and 
disgraceful. It has already done so, almost to the final 
dissolution of it. Weak at home and disregarded abroad 
is our present condition, and contemptible enough it is. . . . 
I have had no wish more ardent, through the whole progress 
of this business, than that of knowing what kind of Govern- 
ment is best calculated for us to live under. No doubt there 
will be a diversity of sentiments on this important subject ; 
and, to inform the judgment, it is necessary to hear all 
arguments that can be advanced. To please all is impos- 
sible, and to attempt it would be vain. The only way, 
therefore, is, under all the views in which it can be placed, 
and with a due consideration to circumstances, habits, etc., 
etc., to form such a Government as will bear the scrutinizing 
eye of criticism, and trust it to the good sense and patriot- 
ism of the people to carry it into effect. Demagogues, men 
who are unwilling to lose any of their State consequence, 
and interested characters in each, will oppose any General 
Government. But let these be regarded rightly, and jus- 
tice, it is to be hoped, will at length prevail.'* 

MONDAY, JULY 2, 1787 

IN CONVENTION 

Immediately after its assembling this day, the 
Convention faced the crucial question Ellsworth's 
motion for equality of representation in the Senate. 
To the despair of some and the relief of many others, 
no decision was reached ; for the vote resulted in a tie 
five States voting on each side Connecticut, New 
York, New Jersey, Delaware, and Maryland favoring 
the motion ; while Massachusetts, Pennsylvania, 
Virginia, North Carolina, and South Carolina were 
opposed, and Georgia was equally divided. The 



THE SMALL VERSUS THE LARGE STATES 

absence of two men changed the fate of the Constitution 
and the whole future history of the country. William 
Pierce of Georgia had gone to New York to attend 
Congress (and incidentally to fight a duel). 1 Daniel 
of St. Thomas Jenifer of Maryland was late in taking 
his seat that morning. Both of these men were opposed 
to equality of representation. Had Pierce been present, 
the vote of Georgia would not have been equally divided 
and would have been cast with the large States. Had 
Jenifer been more prompt in his attendance, the vote 
of Maryland (actually cast by Luther Martin with the 
small States) would have been divided, and the large 
States would have prevailed on the motion. 2 On such 
slight chance circumstances did this crisis depend. 

1 Alexander Hamilton was to serve as second to Pierce's adversary in the duel ; 
see Hamilton to Pierce, July, 1787 ; Hamilton to Auldjo, July 26, 1787 ; Writings of 
Alexander Hamilton (Lodge's ed., 1904), IX, 419, 420, 421. 

2 Interesting explanations of this situation have been given. Luther Martin, in 
his letter to the Maryland Legislature, described the vote as follows : "Georgia had 
only two representatives on the floor, one of whom (not, I believe, because he was 
against the measure, but from a conviction that we would go home and thereby dis- 
solve the Convention before we would grfe up the question) voted also in the nega- 
tive by which that State was divided. On this question, Mr. Martin was the only 
delegate for Maryland present, which circumstance secured the State a negative. 
Immediately after the question had been taken and the President had declared 
the votes, Mr. Jenifer came into the Convention ; when Mr. King of Massachusetts, 
valuing himself on Mr. Jenifer to divide the State of Maryland on this question as 
he had on the former, requested of the President that the question might be put 
again. However, the motion was too extraordinary in its nature to meet with suc- 
cess." Elliot's Debates, I, 356. 

Max Farrand in The Framing of the Constitution (1913), p. 96, says : "The vote 
was a tie five States to five. This unexpected result was achieved through a 
combination of two circumstances. Jenifer of Maryland was absent, thus enabling 
Luther Martin to cast the vote of that State in the affirmative; and Abraham 
Baldwin by changing his vote to the affirmative (in favor of equality of representa- 
tion) divided the vote of Georgia. . . . Baldwin was a former Connecticut man 
and so was doubtless in friendly understanding with the attitude of the delegates of 
thai State/' 

William Garrott Brown in The Life of Oliver Ellsworth (1905), p. 144, says : "It 
was Georgia that had changed. Her vote, hitherto regularly given to the majority, 
was this time divided. It was, in fact, one man only that had changed, and that 
man was Abraham Baldwin, a native of Connecticut, a graduate and sometime tutor 
of Yale, and but recently become a citizen of the State which he now sat for. The 
facta countenance a conjecture that the personal influence of the three leading men 
of his native State may have helped to turn him ; but he may also have felt, as 
Georgia was the last State to vote and had but two representatives, that he and his 
colleague had to decide whether the Convention should continue in existence." 



MONDAY, JULY 2, 1787 263 

The Convention had reached an entire impasse. 
Charles Pinckney and General Charles C. Pinckney 
now expressed their desire for an agreement, and the 
latter proposed that a Committee consisting of a 
member from each State be appointed to devise and 
report for some compromise. His suggestion was 
strongly supported. Gouverneur Morris, who had 
been absent since May 30, and who had just returned 
from New York, now took occasion to interpolate an 
elaborate and not very pertinent speech, expounding 
his theories as to the necessity of life tenure in the 
Senate, in order to establish the independence of that 
body. 1 The striking feature of this speech, however, 

1 An interesting illustration of the danger of trusting to oral tradition occurs 
in the Life of Gouverneur Morris, by Jared Sparks. In writing this book, before 
Madison's Notes of Debates had been published, and while the only knowledge of 
the Convention was to be obtained from the Journal and from Yates' Notes, Sparks 
asked Madison whether the following anecdote then current, as to Morris, was cor- 
rect : " While the Convention was sitting, Mr. Morris was absent for several days. 
On his return to Philadelphia, he called at the house of Robert Morris, where he 
found General Washington, who, as well as Robert Morris, was much dejected at 
what they regarded the deplorable state of things in the Convention. Debates had 
run high, conflicting opinions were obstinately adhered to, animosities were kin- 
dling, some of the members were threatening to go home, and, at this alarming crisis, 
a dissolution of the Convention was hourly to be apprehended. Instructed in these 
particulars, Gouverneur Morris went into the Convention on the day following, 
and spoke with such eloquence and power, on the necessity of union, of partial sacri- 
fices, and temperate discussion, that he contributed much to work a change in the 
feeling of the members, which was the means of restoring harmony and ultimately 
of attaining the objects of the Convention. It is added that, as his absence had 
prevented his partaking of the warmth which had been excited by the previous dis- 
cussions, his counsel and coolness had the greater effect." In reply, Madison wrote 
to Sparks, April 8, 1831 : "It is certain that the return of Mr. Morris to the Con- 
vention was at a critical stage of its proceedings. . . . Great zeal and pertinacity 
had been shown on both sides, and an equal division of votes on the question had 
been reiterated and prolonged, till it had become not only distressing but seriously 
alarming. . . . This crisis was not over when Mr. Morris is said to have had an 
interview and conversation with General Washington and Mr. Robert Morris, such 
as may well have occurred. But it appears that on the day of his re-entering the 
Convention, a proposition had been made from another quarter to refer the knotty 
question to a Committee, with a view to compromise, the indications being that 
sundry members from the larger States were relaxing in their opposition. . . . Mr. 
Morris . . . combated the compromise throughout. The tradition is, however, 
correct, that on the day of his resuming his seat, he entered with anxious feelings 
into the debate, and in one of his speeches painted the consequences of an abortive 
result to the Convention, in all the deep colors suited to the occasion. But it is not 
believed that any material influence on the turn which things took could be ascribed 
to his efforts ; for besides the mingling with them of some of his most disrelished ideas. 



264 THE SMALL VERSUS THE LARGE STATES 

to be particularly noted, was that he stated his "fears 
of the influence of the rich" whose "schemes will be 
favored by the extent of the country. The people in 
such distant parts cannot communicate and act in 
concert. They will be the dupes of those who have 
more knowledge and intercourse. The only security 
against encroachments will be a select and sagacious 
body of men instituted to watch against them on all 
sides." Randolph favored a Committee, though, said 
he, "considering the warmth exhibited in debate on 
Saturday, I have, I confess, no great hopes that any 
good will arise from it." Caleb Strong of Massa- 
chusetts, Sherman of Connecticut, and Lansing of 
New York thought that a Committee might be useful, 
and Williamson of North Carolina said that "if we do 
not concede on both sides, our business will soon be at 
an end." Gerry of Massachusetts said that : "Some- 
thing must be done, or we shall disappoint not only 
America, but the whole world. . . . We must make 
concessions on both sides. Without these, the 
Constitutions of the several States would never have 
been formed." 

The only leaders who held out to the end against any 
compromise on this question were Wilson and Madison ; 
but the Convention, with only Pennsylvania dissenting, 
voted to elect by ballot such a Committee, and the 
following were chosen : from the large States, Gerry, 
Franklin, Mason, Davie, and Rutledge ; from the 
small States, Ellsworth, Yates, Paterson, Bedford, and 
Martin ; from Georgia, Baldwin (who had voted 
for the Ellsworth amendment on this day, when 
Georgia divided its vote). To give this Committee 
time to consider, the Convention adjourned over the 
ensuing holiday, until Thursday, July 5. 

the topics of his eloquent appeals to the members had been exhausted during his ab- 
sence and their minds were too much made up to be susceptible of new impressions." 



TUESDAY, JULY 3, 1787 65 

OUT OF CONVENTION 

Washington noted : 

"Attended Convention. Dined with some of the 
Members of Convention at the Indian Queen. Drank tea 
at Mr. Bingham's, and walked afterwards in the State 
House Yard. Set this morning for Mr. Pine who wanted 
to correct his portrait of me [painted in 1785]." 

The American Herald in Boston, on this day, urged 
acceptance of any plan which might "be recommended 
by the united wisdom of the Convention" : 

"Many have been handed out already by the imagination 
of writers. In our humble opinion no government can be 
entirely safe for the liberty of the subject unless the three 
distinct powers are lodged in separate hands. We ought, 
however, to submit this matter to that great council with 
the most respectful confidence. It would be better to 
embrace almost any expedient rather than to remain as we 
are. ... It is wished the people may be awakened to the 
necessity of the measure and be on their guard against these 
pretended friends but real enemies who may perhaps ap- 
proach them with the mask of gravity and popular zeal and 
enkindle jealousy and faction to the ruin of our fairest 
prospects." 

TUESDAY, JULY 3, 1787 

The Convention did not sit on this day. Washington 
noted : x 

"Sat before the meeting of the Convention for Mr. 
[Charles Willson] Peate, who wanted my picture to make 
a print or Mezzatinto by. Dined at Mr. Morrises and 

1 In the Massachusetts Centinel, Sept. 29, 1787, the following advertisement 
appeared : "A mezzatinto print of his Excellency General Washington by Charles 
Willson Peale of this city, from a portrait which he painted since the sitting of the 
Convention is now compleated. The likeness is esteemed the best that has been 
executed in a print. . . . The price of these prints in a neat oval frame (the inner 
frame gilt) is two dollars each, or one dollar for the print only ; and a large allow- 
ance will be made to those who purchase to sell again. Apply to Charles W. Peale 
at the corner of Third and Lombard Streets, Phil." 

Carpenter's Hall was located at Fourth and Chestnut Streets. 



266 THE SMALL VERSUS THE LARGE STATES 

drank tea at Mr. Powell's. After which, in company with 
him, I attended the Agricultural Society at Carpenter's 
Hall." 

Jacob Hiltzheimer wrote in his diary : 

" Before breakfast went with my daughter, Hannah, to 
the meadows, where I found three men mowing the five acre 
piece. On returning, we met his Excellency General Wash- 
ington taking a ride on horseback, only his coachman, Giles, 
with him." 

Richard Dobbs Spaight, a delegate from North 
Carolina, wrote this day to James Iredell that : "The 
Convention has made, as yet, but little progress in the 
business they have met on ; and it is a matter of uncer- 
tainty when they will finish. Secrecy being enjoined, 
I can make no communications on that head." l 

1 McRee's IredeU. II. 



CHAPTER FIVE 

THE GBEAT COMPROMISE 

July 4 Independence Day 

July 5 Report of the Compromise Committee 

July 6 Power to Originate Revenue Bills 

July 7, 9, 10, 11, 12 . Discussion of Compromise 

(JulyS) (Sunday) 

July 13 Ratio of Representation in the House 

The Census The Northwest 

Territory Ordinance 

July 14, 16 . . . . The Great Compromise 
(July 15) (Sunday) 

WEDNESDAY, JULY 4, 1787 

The Convention did not sit on this holiday ; but the 
members took part in the celebration of Independence 
Day, which was marked by military maneuvres, dinners, 
and speeches. 

Washington noted : 

"Visited Dr. Cho vet's Anatomical figures, and (the Con- 
vention having adjourned for the purpose) went to hear (at 
the Calvinist Church) an Oration on the Anniversary of 
Independence delivered by a Mr. Mitchell, a student of law. 
After which I dined with the State Society of Cincinnati 
at Epple's Tavern, and drank tea at Mr. Powell's." 

The celebration was described by the Herald, the 
next day, stating that: the Society of the Cincinnati 
(of which he, Washington, had just been elected 
President General, and of which General Arthur St. 
Clair was local President, and Chief Justice Thomas 



268 THE GREAT COMPROMISE 

McKane was Vice President) "met at the State-House, 
marched in procession, with accompanyments of music 
from martial instruments and ringing of bells, to the 
new German Lutheran Church in Race Street, where 
an oration well adapted to the occasion was delivered 
to a very numerous and crowded auditory by James 
Campbell, Esq. 1 Entertainments were prepared at 
the City Tavern, at EppeFs, Gray's Ferry, Fishhouse, 
Wigwam, Geiffe's and Lilliput on the Jersey Shore, 
etc., where different parties from this city and Jersey 
met with mutual congratulations, and spent the 
remainder of the day with liberality and good humor 
which always mark and characterize the Sons of 
Freedom on this glorious festival." 2 

The subject of the oration by James Campbell was 
"The Advantages which have resulted to Mankind 
from the Independence of America." 3 Addressing 
himself particularly to Members of the Convention, 
he said : 

"Illustrious Senate! to you your country looks with 
anxious expectation, on your decisions she rests, convinced 
that men who cut the cords of foreign legislation are com- 
petent to framing a system of Government which will 
embrace all interests, call forth our resources, and establish 
our credit. But in every plan for improvement or reforma- 
tion, may an attachment to the principles of our present 
Government be the characteristic of an American, and 

1 It may be noted that Washington apparently mistook the name of the orator, 
in recording it in his diary. 

2 The Gazette described the day, as follows: "Early in the morning, the Light 
Horse Artillery Light Infantry, together with Col. Willis' battallion of Militia, 
assembled on the Commons ; and after performing various evolutions, etc. fired a 
feu de joie. The train of artillery fired the salute of the United States, with three 
times thirteen rounds. The officers of the Militia and the corps in uniform then 
attended the State Society of Cincinnati, who met at the State House and marched 
in procession, with accompaniments of music from martial instruments and ringing 
of bells to the New Reformed Calvinist Church in Race Street. ..." 

8 An Oration Delivered at the Reformed Calvinist Church in Philadelphia, by 
James Campbell, Esq., to which is prefixed an Introductory Prayer by Rev. William 
Rogers (1787). 



WEDNESDAY, JULY 4, 1787 269 

may every proposition to add kingly power to our Federal 
system be regarded as treason to the liberties of our country." 

He noted as one of the advantages, the development 
of the science of Government as shown "in the wisdom 
and energy of many of our Constitutions, and witness 
the literary productions of those illustrious civilians, 
Jefferson and Adams, whose works are not only cal- 
culated to instruct their countrymen but to enlighten 
Europe and posterity in the great science of social and 
political happiness." But, since "our Constitutions 
were made upon the spur of the occasion, with a bayonet 
at our breasts, and in the infancy of our knowledge of 
Government and its principles," it might be admitted 
that they were not perfect or entirely "accommodated 
to the temper of our citizens." Yet, said he : 

"How fallen would be the character we have acquired 
in the establishment of our liberties, if we discover inability 
to form a suitable Government to preserve them ! Is the 
science of Government so difficult that we have not men 
among us capable of unfolding its mysteries and binding 
our States together by mutual interests and obligations ? . . . 
Methinks, I already see the stately fabric of a free and 
vigorous Government rising out of the wisdom of the Foederal 
Convention. I behold order and contentment pervading 
every part of the United States, our forests falling before 
the hand of labour, our fields doubling their encrease from 
the effects of well directed industry, our villages enlivened 
by useful manufactures, and our cities thriving under foreign 
and domestic commerce. I behold millions of freemen 
covering the shores of our rivers and lakes with all the arts 
and enjoyment of civilized life, and on the Anniversary 
of the Day, 1887, shouting forth the praises of the heroes 
and patriots who, in 1776, secured and extended to them 
all their happiness/' 

Comment was made later by the Herald (July 14) 
that the blessings brought about by the Declaration 



270 THE GREAT COMPROMISE 

of Independence must be perpetuated by the Con- 
vention : 1 

"When we look forward to the happiness, the power and 
the dignity which the event of that great day ought to com- 
municate to our posterity, it becomes us, in the pride of our 
honest triumphs, to promote the means for perpetuating the 
blessings we enjoy and to expect with zeal and confidence 
from the Federal Convention a system of Government ade- 
quate to the security and preservation of those rights which 
were promulgated by the ever memorable Declaration of 
Independency . ' ' 

The same sentiments were eloquently voiced by Dr. 
Benjamin Rush in an address made by him in Phila- 
delphia, this day, in which he said : 2 

"There is nothing more common than to confound the 
terms of American Revolution with those of the late Ameri- 
can War. The American War is over ; but this is far from 
being the case with the American Revolution. On the con- 
trary, nothing but the first act of the great drama is closed. 
It remains yet to establish and perfect our new forms of Gov- 
ernment ; and to prepare the principles, morals and manners 
of our citizens for these forms of Government after they are 
established and brought to perfection. The Confederation, 

1 It may be noted that at the celebration of the day by the Society of the Cincin- 
nati, in Trenton, New Jersey, one of the toasts was: "The Grand Convention 
may they form a Constitution for an eternal Republic." The Massachusetts Cen- 
tinel, July 14, 1787, quoted another toast: "The Federal Convention may the 
result of their meeting be as glorious as its members are illustrious" ; and the Penn- 
sylvania Gazette, July 18, a toast at Lancaster : "The members of the present Con- 
vention may they do as much towards the support of our independence as their 
virtuous President did towards its establishment." 

2 Principles and Acts of the Revolution (1822), by Hezekiah Niles. The Penn- 
sylvania Gazette, May 30, and the New York Daily Advertiser, June 4, 1787, published 
the following suggestions for ensuing celebrations of Independence Day : " As the 
day for celebrating the anniversary>of independence is approaching, a correspondent 
proposes that added to the usual mode of celebrating it, a suitable person should be 
pitched upon in the different villages, counties or townships, to introduce the enter- 
tainment of the day with an oration upon some subject connected with the liberty 
of the Government of the United States. When a clergyman can be had, delivery 
of a prayer suited to the day should precede the delivery of the oration. By these 
means, rational entertainment and useful knowledge may be blended with the 
pleasures of the table, and the history of important events and illustrious characters 
may be conveyed in an easy and agreeable manner to posterity." 



THURSDAY, JULY 5, 1787 271 

together with most of our State Constitutions, were formed 
under very unfavorable circumstances. We had just 
emerged from a corrupted monarchy. Although we under- 
stood perfectly the principles of liberty, yet most of us were 
ignorant of the forms and combinations of power in repub- 
lic. ... In our opposition to monarchy, we forgot that the 
temple of tyranny has two doors. We bolted one of them by 
proper restraints ; but we left the other open, by neglecting 
to guard against the effects of our own ignorance and licen- 
tiousness." 

On this Fourth of July, John Jay was writing from 
New York to John Adams in London, as to the Con- 
vention : 

"The public attention is turned to the Convention. Their 
proceedings are kept secret, and it is uncertain how long they 
will continue to sit. It is, nevertheless, probable that the 
importance and variety of objects that must engage their 
attention will detain them longer than many may expect. 
It is much to be wished that the result of their deliberations 
may place the United States in a better situation ; for if their 
measures should either be inadequate or rejected, the dura- 
tion of the Union will become problematical. For my own 
part, I am convinced that a National Government, as strong 
as may be compatible with liberty, is necessary to give us 
National security and respectability. Your book gives us 
many useful lessons ; for, although I cannot subscribe to 
your chapter on Congress, yet I consider the work as a valu- 
able one, and one that will tend greatly to recommend and 
establish those principles of government on which alone the 
United States can erect any political structure worth the 
trouble of erecting." 

THURSDAY, JULY 6, 1787 

IN CONVENTION 
Report of the Compromise 

On this day, Elbridge Gerry brought into the 
Convention the Report of the Committee appointed 



THE GREAT COMPROMISE 

on July 2. As hoped for, it contained the grounds 
of a compromise, founded on a motion made in the 
Committee by Doctor Franklin, who, as usual, took 
this opportunity to employ his conciliatory methods. 
It recommended three propositions (a) that in the 
first branch of the Legislature, there should be one 
Representative for every 40,000 inhabitants ; (6) that 
this first branch should have the power to originate all 
bills for raising or appropriating money and for fixing 
salaries, not to be altered or amended by the second 
branch; (c) that in the second branch, each State 
should have an equal vote. 

As Madison states, this compromise was regarded 
as a victory by the smaller States. Before taking up 
the specific proposals, the leading delegates gave 
energetic expression to their general views of the 
situation. Ellsworth, Gerry, and Mason one from 
a small State and two from the large States urged 
acceptance of the compromise, though each had 
objections to parts of it. Unless a compromise should 
take place, they said, a secession would occur; and if 
"we do not come to some agreement among ourselves, 
some foreign sword will probably do the work for us." 
"Accommodation is the object," said Mason, and 
though "it could not be more inconvenient to any 
gentleman to remain absent from his private affairs 
than it was for him, he would bury his bones in this 
city rather than expose his country to the conse- 
quences of a dissolution of this Convention without 
anything being done." Paterson, however, thought 
that the Report yielded too much to the large States 
and stated his intention to vote against it. The three 
great Nationalists Wilson, Madison, and G. Morris 
also opposed the Compromise Report. Madison 
stated that if he must have the option between justice 
and gratifying the majority of the people, or conciliating 



THURSDAY, JULY 5, 1787 273 

the smaller States, he must choose the former. "It 
was in vain to purchase concord in the Convention on 
terms which would perpetuate discord among their 
constituents. The Convention ought to pursue a plan 
which would bear the test of examination and which 
would be espoused and supported by the enlightened 
and impartial part of America." He did not believe 
that Delaware and other smaller States would bid 
defiance to the rest of the Union. Wilson said that 
he "was not deficient in a conciliating temper, but 
firmness was sometimes a duty of higher obligation." 
G. Morris also thought the whole theory of the Compro- 
mise Report to be wrong. He said that: "He came 
here as a Representative of America; he flattered 
himself that he came here in some degree as a Repre- 
sentative of the whole human race ; for the whole 
human race will be affected by the proceedings of this 
Convention. He wished gentlemen to extend their 
views beyond the present moment of time, beyond the 
various limits of peace, from which they derive their 
political origin." We are not here, he said, "to truck 
and bargain for our particular States. . . . State 
attachments and State importance have been the bane 
of this country. . . . He wished our ideas to be 
enlarged to the true interest of man, instead of being 
circumscribed within the narrow compass of a par- 
ticular spot." These views he repeated, later, saying 
that : "It had been early said by Mr. Gerry that the 
new Government would be partly National, partly 
Federal ; that it ought in the first quality to protect 
individuals ; in the second, the State. But in what 
quality was it to protect the aggregate interests of the 
whole? Among the many provisions which had been 
urged, he had seen none for supporting the dignity and 
splendor of the American empire. It had been one of 
our greatest misfortunes that the great views of the 



874 THE GREAT COMPROMISE 

Nation had been sacrificed constantly to local views." 
And again, he said, that though "the States had many 
Representatives on the floor ... he feared few were 
to be deemed the Representatives of America." 1 

OUT OF CONVENTION 
Washington noted : 

"Attended Convention. Dined at Mr. Morris's and 
drank tea there, spent the evening also." 

Nathan Dane wrote, this day, from New York to 
Ruf us King of Massachusetts : 

"I am very sorry to hear you say that it is uncertain what 
will be the result of the Convention, because I infer there 
must be a great diversity of sentiments among the members. 
The Convention must do something. Its meeting has all 
those effects which we and those who did not fully discern 
the propriety of the measure apprehended. You know the 
general opinion is, that our Federal Constitution must be 
mended ; and if the Convention do not agree at least in some 
amendments, a universal despair of our keeping together 
will take place. It seems to be agreed here that the Vir- 
ginia plan was admitted to come upon the floor of investiga- 
tion by way of experiment and with a few yieldings on this 
point, and that it keeps its ground at present. The contents 
of this plan was known to some, I believe, before the Con- 
vention met. Perhaps the public mind will be prepared in 
a few years to receive this new system." 

FRIDAY, JULY 6, 1787 

IN CONVENTION 
Power to Originate Money Bills 

The Convention, at the outset, referred to a Special 
Committee that part of the Report of the Compromise 
Committee, which fixed the ratio of votes in the 
House at one member for every 40,000 inhabitants. 

1 Gouverneur Morris, July 7, 10, 1787. 



FRIDAY, JULY 6, 1787 75 

It then proceeded to consider the second portion of the 
proposed compromise, giving to the House the ex- 
clusive right to originate bills for raising or appropri- 
ating money. A curious mixture of views appeared 
with reference to this. The proposal had apparently 
originated with Gerry. As early as June 13, he had 
moved to restrain the Senatorial branch from orig- 
inating money bills, saying that: "The other branch 
was more immediately the representative of the peo- 
ple, and it was a maxim that the people ought to 
hold the purse strings." Gerry's proposal was in 
accord with the provisions of most of the State 
Constitutions, viz., those of Delaware, Maryland, 
Massachusetts, New Hampshire, New Jersey, South 
Carolina, and Virginia, in which power to originate 
money bills lay exclusively in the lower branch of the 
Legislature (though Delaware, Massachusetts, and 
New Hampshire allowed its Senate to alter or amend). 
Hugh Williamson of North Carolina had favored the 
proposal, as "it will oblige some member in the lower 
branch to move, and people can then mark him." 
Pierce Butler of South Carolina had said that he saw 
no reason for such a discrimination ; that though it 
was borrowed from the British Constitution, there was 
no analogy between the Senate and the House of 
Lords ; and he had then made two curious arguments 
against it prophecies, one of which was never ful- 
filled, but the other of which showed foresight of a 
practice which has been frequently indulged in by the 
House. "If the Senate shall be degraded," he said, 
"by any such discriminations, the best men would be 
apt to decline serving in it, in favor of the other branch ; " 
and, he continued, "it will lead the latter into the 
practice of tacking other clauses to money bills." King 
and Madison had concurred in opposing, saying that 
"as the Senate would be generally a more capable set 



276 THE GREAT COMPROMISE 

of men, it would be wrong to disable them " in this way ; 
and that the proposal if adopted must be extended to 
amending as well as to originating money bills. Sher- 
man had said that as the Senate would bear their share 
of the taxes, they would also be representatives of the 
people ; and that the right of both branches to originate 
money bills had prevailed in Connecticut and had been 
found to be "safe and convenient." General Pinckney 
had said that Gerry's proposed system prevailed in 
South Carolina, "and has been a source, of pernicious 
disputes between the two branches ; moreover, it 
was evaded by the Senate's handing amendments, 
informally, to the House." Gerry's motion receiving 
little support had been rejected, only New York, 
Delaware, and Virginia voting for it. This action by 
the Convention had shown clearly that they regarded 
the new Senate which they were about to constitute, 
as a Legislative body of an entirely different nature 
from the Senates under the State Constitutions; for, 
unless this was so, it is unlikely that the Convention 
would have failed to follow the provisions of those 
Constitutions. 

When the delegates, on this July 6, took up this part 
of the compromise, they appeared to be split into five 
distinct factions : (a) those delegates from the smaller 
States who opposed taking this power from the Senate 
in any event ; (6) those from the smaller States who, 
though opposed, were willing to vote for it as a con- 
cession or compromise; (c) those from the larger 
States who regarded it as an essential right to be 
possessed by the House since that body as the immedi- 
ate representatives of the people ought to have control 
of the people's money, and since the large States would 
probably have a majority in the House ; (d) those from 
the larger States who regarded the right as of no 
consequence and hence as constituting no concession 



FRIDAY, JULY 6, 1787 277 

whatever on the part of the smaller States ; (e) those 
from the larger States who regarded the deprivation 
of the Senate of this right as fundamentally wrong in 
theory, and likely to be a dangerous source of dispute 
between the two branches. 1 The delegates comprising 
(b) and (c) were willing to vote for this provision; 
those comprising (a), (d), and (e) were opposed to it. 
This part of the compromise was debated on July 5 ; 
and it was the first to be adopted, on July 6, by a vote 
of five States to three (Pennsylvania, Virginia, and 
South Carolina voting against it, and Massachusetts, 
New York, and Georgia being divided). It was 
carried, therefore, by North Carolina voting with the 
smaller States of Connecticut, New Jersey, Delaware, 
and Maryland. Reconsideration of this vote was had 
on July 14, but on July 16, the whole compromise, 
including this provision as to money bills, was accepted 
(as hereafter described) by five States to four, with 
Massachusetts divided North Carolina again joining 
with the smaller States. 

OUT OF CONVENTION 
Washington noted : 

"Sat for Mr. Peale in the morning. Attended Conven- 
tion. Dined at the City Tavern with some members of 
Convention, and spent the evening at my lodgings." 

Dr. William Samuel Johnson noted, this day : "Hot. 
In Convention. Dined G. Washington." A Phila- 
delphia despatch published in many other States said : 2 

"A correspondent remarks that the Convention now 
sitting seems quite novel in the history of governments, and 
stands remarkable and alone in political history. After 
establishments of governments in various parts of the Con- 

1 (o) Mercer (Aug. 8) ; Carroll (Aug. 13) ; (6) Bedford, Ellsworth, Gerry, 
Mason; (c) Williamson, Dr. Franklin; (d) Madison, Butler, Pinckney, General 
Pinckney; (e) G. Morris, Wilson, Rutledge (Aug. 13). 

2 See Connecticut Courant, July 16 ; Salem Mercury, July 17, 1787. 



278 THE GREAT COMPROMISE 

tinent, some of which have been forced upon the majority 
of the government, and after the existence of others which 
have not only been cheerfully submitted to but eagerly 
embraced by the people ; it is still singular to see an author- 
ity, however great and respectable in itself, presiding tacitly 
over the Confederation of the States by voluntary election." 

Joseph Jones wrote from Virginia to Madison 
relative to the vacancy left by the departure of George 
Wythe, from the Convention, and also said : 

"It is supposed by some Dr. McClurg will soon retire. 
Should that be the case, and the other gentlemen remain, I 
urn inclined to think from what formerly passed at the Board, 
they will be deemed a representation competent to the great 
objects for which they were appointed. If the Massachu- 
setts Assembly should pursue such measures, as from the 
specimens you mention there is reason to fear they will, the 
example may probably prove contagious and spread into 
New Hampshire ; whereby the Eastern politics will become 
formidable, and from the principles which appear to govern 
them and the number of adherents pernicious consequences 
are to be apprehended." 

SATURDAY, JULY 7, 1787 

IN CONVENTION 

On this day, a preliminary vote was taken to the 
effect that the clause allowing each State one vote in 
the Senate should stand as a part of the Report. It was 
recognized, however, that this was not a final action. 
"This is the critical question," said Gerry, and while 
opposed to the provision as a separate question, "he 
had rather agree to it than have no accommodation." 
For, said he, "a Government short of a proper National 
plan, if generally acceptable, would be preferable to a 
proper one which, if it could be carried out at all, would 
operate on discontented States." G. Morris said, 
"he had no resolution unalterably fixed except to do 



SUNDAY, JULY 8, 1787 279 

what should finally appear to him right/' but that he 
was opposed to the Report. 1 

OUT OF CONVENTION 
Washington noted : 

"Attended Convention. Dined at the Cold Spring with 
the Club at Springsbury. Returned in the evening and 
drank tea at Mr. Meredith's." 

On this day, the Packet again repeated the ridic- 
ulously erroneous report that: "So great is the una- 
nimity we hear that prevails in the Convention upon 
all great federal subjects, that it has been proposed 
to call the room in which they assemble Unanimity 
Hall." This statement, reprinted throughout the 
country, long deceived the people as to the situation 
in the Convention. 2 It is not improbable that it was 
intended to do so. 

SUNDAY, JULY 8, 1787 

Washington noted : 

" About 12 o'clock rid to Doctor Logan's near German- 
town, where I dined. Returned in the evening and drank 
tea at Mr. Morris's." 

This visit paid to Dr. George Logan at his estate of 
Stenton was later described by his widow, in a strik- 
ing picture of the human side of Washington. "His 
reputation as a skilful agriculturist procured for him 
the grateful favour of a visit from the 'Father of his 
Country', then in Philadelphia officiating as President 
of the Federal Convention. He came with his friend 

1 Madison wrote to Jared Sparks, April 8, 1831 : "It is but due to Mr. Morris 
to remark that to the brilliancy of his genius, he added what is too rare a 
candid surrender of his opinions, when the lights of discussion satisfied him that they 
had been too hastily formed, and a readiness to aid in making the best of measures in 
which he had been overruled." 

2 See Pennsylvania Qazette, July 18 ; Pennsylvania Herald, July 21 ; Pennsyl- 
vania Journal, July 21; New York Daily Advertiser, July 23; American Herald 
(Boston), July 30 ; Connecticui Courant, July 30, 1787. 



280 THE GREAT COMPROMISE 

Daniel Jenifer, Esq. of Maryland, who had often before 
been with us, and passed a day at Stenton in the most 
social and friendly manner imaginable, delighted with 
the fine grass land and beautiful experiments with 
gypsum, some of which plainly showed initials and 
words traced upon the sod of a far richer hue and thick- 
ness than the surrounding grass, and other subjects of 
rural economy which Dr. Logan then had to show. His 
praise conferred distinction, nor did he make me less 
happy by his pleasing attention to myself and his kind 
notice of my children whom he caressed in the most 
endearing manner, placing my little boy on his knee 
and taking my infant in his arms with commendations 
that made their way immediately to a mother's heart. 
I had always looked up to General Washington, from 
the first time that I ever heard his auspicious name, as 
a rare and perfect pattern of the dignity to which man 
might attain by living up to the laws of virtue and 
honour, and now that I beheld the colossal greatness 
at nearer view, I perceived it polished and adorned with 
all the amenity and gentleness which delights and 
endears in domestic society." l 

Francis Hopkinson wrote this day from Philadelphia 
to Jefferson that: "It will be very difficult to frame 
such a system of Union and Government for America 
as shall suit all opinions and reconcile clashing interests. 
Their deliberations are kept inviolably secret, so that 
they sit without censure or remark ; but no sooner will 
the chicken be hatched but everyone will be plucking 
a feather." Dr. Hugh Williamson, a delegate from 
North Carolina, wrote to James Iredell: "I think it 
more than likely that we shall not leave this place 
before the middle of August. The diverse and almost 
opposite interests that are to be reconciled occasion 

1 Memoirs of Dr. George Logan of Stenton (1899), by Deborah Norris Logan, 
p. 44. 



TUESDAY, JULY 10, 1787 281 

us to progress very slowly. I fear that Davie will be 
obliged to leave us before our business is finished, which 
will be a heavy stroke to the delegation. We have 
occasion for his judgment, for I am inclined to think 
that the great exhibitions of political wisdom in our 
late Governor (Martin) while he sat at the helm of our 
State have so exhausted his fund that time must be 
required to enable him again to exert his abilities to the 
advantage of the Nation." 

MONDAY, JULY 9, 1787 

IN CONVENTION 

The Convention had under discussion the first 
portion of the Compromise Report as to representation 
in the House. The arrival of Daniel Carroll (the third 
delegate from Maryland), on this day, made it certain 
that the vote of the State of Maryland would be cast 
on the compromise proposal; hitherto, its vote had 
been divided, owing to the divergent views of Luther 
Martin and Jenifer. 

OUT OF CONVENTION 
Washington noted : 

"Sat in the morning for Mr. Peale. Attended Conven- 
tion. Dined at Mr. Morris's and accompanied Mrs. Morris 
to Doctr. [John] Redman's, 3 miles in the Country, where 
we drank tea and returned." 

TUESDAY, JULY 10, 1787 

IN CONVENTION 

The Convention continued its discussion of the mode 
of representation in the House. 

On this day, two of the three delegates from New 
York Robert Yates and John Lansing left the 
Convention and never returned. 1 In a letter to 

1 George Mason in a conversation with Jefferson, at Gunston Hall, Sept. SO, 
1792, gave as the reason for their departure the necessity that they should attend 



THE GREAT COMPROMISE 

Governor Clinton explaining their reasons for this 
action, they stated that they were convinced that the 
form of Government which the Convention was adopt- 
ing was in excess of the powers vested in the delegates 
by the respective States and that it was impracticable 
to establish "a General Government pervading every 
part of the United States and extending essential 
benefits to all" that such a Government, however 
guarded, "must unavoidably in a short time be pro- 
ductive of the destruction of the civil liberty of such 
citizens who could be effectively coerced by it." This 
defection of New York and its delegates was attributed 
by Madison to commercial reasons. Writing in 1833, 
he said that Yates and Lansing "were the Representa- 
tives of the dominant party in New York which was 
opposed to the Convention and the object of it, which 
was averse to any essential change in the Articles of 
Confederation, which had inflexibly refused to grant 
even a duty of 5 per cent, on imports for the urgent 
debt of the Revolution, which was availing itself of 
the peculiar situation of New York for taxing the 
consumption of her neighbors, and which foresaw that 
a primary aim of the Convention would be to transfer 
from the States to the Common Authorities the entire 
regulation of foreign commerce. Such were the feelings 
of the two Deputies that, on finding the Convention 
bent on radical reform of the Federal system, they left 
it in the midst of its discussions, and before the opinions 
and views of many of the members were drawn out to 
their final shape and practical application." l 

Court in New York : "Yates and Lansing never voted in one instance with Hamil- 
ton, who was so much mortified at it that he went home. When the season for 
Courts came on, Yates a Judge and Lansing a lawyer went to attend the Courts. 
Then Hamilton returned." Writings of Thomas Jefferson (Ford's ed.), I, 238, 
"The Anas." 

1 Writings of James Madison (Hunt's ed.), IX, letter to John Tyler, 1833 : see 
also Madison to Joseph Gales, Aug. 28, 1821 : "Whatever may have been the per- 
sonal worth of the two delegates ... it cannot be unknown that they represented 



TUESDAY, JULY 10, 1787 283 

OUT OF CONVENTION 
Washington noted : 

"Attended Convention. Dined at Mr. Morris's. Drank 
tea at Mr. Bingham's and went to the Play." 

The play referred to was: "A Concert, in the first 
part of which will be introduced an Entertainment 
called the Detection or the Servants Hall in an Uproar, 
to which will be added a Comic Opera in two Acts called 
Love in a Camp or Patrick in Prussia, being the second 
part of the Poor Soldier, with the original Overture 
Accompaniments, etc., with entire new scenery, A 
View of the Camp at Grossentinz." l 

the strong prejudices in New York against the object of the Convention, which 
was, among other things, to take from that State the important power over its com- 
merce. ..." And writing to Andrew Stevenson, March 25, 1826, he said : "Both 
Mr. Yates and Mr. (Luther) Martin brought to the Convention predispositions 
against its object, the one, from Maryland, representing the party of Mr. [Samuel) 
Chase opposed to Federal restraints on State legislation ; the other, from New York, 
the party unwilling to lose the power over trade through which the State levied a 
tribute in the consumption of its neighbors. Both of them left the Convention long 
before it compleatcd its work, and appear to have reported in angry terms what 
they had observed with jaundiced eyes." 

1 Though under the Pennsylvania statutes, performance of theatrical plays was 
unlawful, such plays were, in fact, acted under the nom de plume of "concert." See 
advertisement in the Pennsylvania Journal, January 6, 1787, of a "Concert", at 
which "Lectures Moral and entertaining", were given, concluding with "A Grand 
pantomimical finale in two acts called Robinson Crusoe or Harlequin Friday. Con- 
cert at six. Vivat Respublica." The citizens of Philadelphia of that day, were 
even offered moving pictures. See an article in the Pennsylvania Packet of January 
9, 1787, written by Charles Willson Peale (who during the Convention was about 
to paint General Washington's portrait) stating : " In Mr. Peale's first ideas of an 
exhibition of moving pictures, it was his intention to have occasionally added new 
pictures with figures moving by machinery, but the great labour and expense to 
produce effects in any tolerable degree imitating those wonderful and pleasing pres- 
entations which Dame Nature so frequently offers to our view, which to be made 
worthy the notice of an attentive observer, is such a labour as the present number 
of encouragers of the fine arts in this city will not support. This, from repeated 
trials, is a known fact, and Mr. Peale, in his present offers of entertainment to the 
Public, having thought it better to perfect what he had made than to attempt any 
new and difficult scene has considerably improved his six perspective views by new 
machinery. Mr. Peale takes this opportunity of thanking those Ladies and Gentle- 
men who have honored his exhibition with their company, and whose compassion 
for an artist's feelings have made them excuse the faults occasioned by accidents in 
a complicated machinery which have too frequently happened in the then promised 
representation. This, the last time of addressing the public on the subject of exhi- 
bitions, is partly to inform those who may yet desire to partake of the entertainment 
that Mr. Peale will only continue his Exhibitions of Moving Pictures with change- 
able effects for a short time, and then those pictures will be locked up, probably 



284 THE GREAT COMPROMISE 

Nothing in his diary reveals any perturbation on 
Washington's part; but a letter written by him, this 
day, to Hamilton an almost despairing letter 
shows the seriousness of the situation in the 
Convention : 

"I thank you for your communication of the 3d. When 
I refer you to the state of the counsels which prevailed at the 
period you left this city, and add that they are now, if pos- 
sible, in a worse train than ever, you will find but little 
ground on which the hope of a good establishment can be 
formed. In a word, I almost despair of seeing a favorable 
issue to the proceedings of our Convention, and do therefore 
repent having had any agency in the business. The men 
who oppose a strong and energetic Government, are, in my 
opinion, narrow-minded politicians, or are under the influ- 
ence of local views. The apprehension expressed by them, 
that the people will not accede to the form proposed, is the 
ostensible, not the real cause of opposition. But, admitting 
that the present sentiment is as they prognosticate, the 
proper question ought nevertheless to be : Is it or is it not the 
best form that such a country as this can adopt? If it be 
the best, recommend it, and it will assuredly obtain, maugre 
opposition. I am sorry you went away. I wish you were 
back. The crisis is equally important and alarming, and no 
opposition, under such circumstances, should discourage 
exertions till the signature is offered." 

This letter was in answer to Hamilton's letter, 
written from New York, July 3, describing somewhat 
optimistically the attitude of men in New Jersey and 
New York towards the Convention : 

"In my passage through the Jerseys and since my arrival 
here, I have taken particular pains to discover the public 
sentiment and I am more and more convinced that this is the 
critical opportunity for establishing the prosperity of this 
country on a solid foundation I have conversed with men 
of information not only of this city but from different parts 
of the State ; and they agree that there has been an astonish- 



TUESDAY, JULY 10, 1787 285 

ing revolution for the better in the minds of the people. The 
prevailing apprehension among thinking men is, that the 
Convention, from a fear of shocking the popular opinion, will 
not go far enough. They seem to be convinced that a strong, 
well-mounted Government will better suit the popular palate 
than one of a different complexion. Men in office are indeed 
taking all possible pains to give an unfavourable impression 
of the Convention; but the current seems to be running 
strongly the other way. A plain but sensible man, in a con- 
versation I had with him yesterday, expressed himself nearly 
in this manner The people begin to be convinced that 
their * excellent form of Government' as they have been used 
to call it, will not answer their purpose ; and that they must 
substitute something not very remote from that which they 
have lately quitted. These appearances, though they will 
not warrant a conclusion that the people are yet ripe for such 
a plan as I advocate, yet serve to prove that there is no rea- 
son to despair of their adopting one equally energetic, if the 
Convention should think proper to propose it. They serve 
to prove that we ought not to allow too much weight to 
objections drawn from the supposed repugnancy of the 
people to an efficient Constitution I confess I am more and 
more inclined to believe that former habits of thinking are 
regaining their influence with more rapidity than is generally 
imagined. Not having compared ideas with you, Sir, I 
cannot judge how far our sentiments agree ; but as I per- 
suade myself the genuineness of my representations will 
receive credit with you, my anxiety for the event of the 
deliberations of the Convention induces me to make this 
communication of what appears to be the tendency of the 
public mind. ... I own to you, Sir, that I am seriously and 
deeply distressed at the aspect of the councils which pre- 
vailed when I left Philadelphia I fear that we shall let 
slip the golden opportunity of rescuing the American empire 
from disunion, anarchy and misery No motley or feeble 
measure can answer the end or will finally receive the public 
support. Decision is true wisdom and will be not less rep- 
utable to the Convention than salutary to the community. 
I shall of necessity remain here ten or twelve days ; if I 



286 THE GREAT COMPROMISE 

have reason to believe that my attendance at Philadelphia 
will not be mere waste of time, I shall after that period rejoin 
the Convention." 

William Blount wrote to Governor Caswell of North 
Carolina that he left New York for Philadelphia on 
June 18, and returned on July 4 : l 

"I conceived it more for the benefit and honor of the 
State, in which opinion my colleagues in the Convention 
agreed, to return with Mr. Benj. Hawkins and represent the 
State in Congress than to continue in the Convention, 
especially as my colleagues in that body were generally 
unanimous and competent to the purposes of their mission." 

WEDNESDAY, JULY 11, 1787 

IN CONVENTION 

The Convention continued its discussion of the mode 
of representation in the House. 

THURSDAY, JULY 12, 1787 

IN CONVENTION 

The Convention continued its discussion of the mode 
of representation in the House. 

FRIDAY, JULY 13, 1787 

IN CONVENTION 
Ratio of Representation in the House 

Before making any final decision on the crucial part 
of the compromise the equality of votes the 
Convention entered into a long and excited debate on 
a subject which, strictly speaking, had not been re- 
ferred to the Committee, but on which it had reported 
namely, that in the House each State should have 

1 North Carolina State Archives, XX, 734. 



FRIDAY, JULY 13, 1787 287 

one vote for every 40,000 inhabitants. 1 On this 
proposal, which in reality formed no part of the real 
compromise, a discussion took place of the greatest 
significance in character. In view of the contention 
made during recent years, that the Constitution was 
economic in its nature, framed chiefly in the interests 
of property and the privileged classes, it should be 
noted that, on at least three occasions, the direct issue 
was made in the Convention between property and 
non-property, and that each time the vote was against 
any privilege for property. One of those occasions 
occurred in this debate on the compromise, in the 
following manner. On July 5, Gouverneur Morris 
raised an objection to fixing the representation in the 
House on the basis of one member for every 40,000 
inhabitants, as reported by the Committee, on the 
ground that "he thought property ought to be taken 
into the estimate as well as the number of inhabitants. 
Life and liberty were generally said to be of more value 
than property. An accurate view of the matter would 
nevertheless prove that property was the main object 
of Society." John Rutledge, General Pinckney, and 
Pierce Butler of South Carolina concurred. So did 
Rufus King and Elbridge Gerry of Massachusetts. 
The question was referred, on July 6, to a Committee, 

1 Gen. Charles C. Pinckney in the South Carolina State Convention of 1788 
stated: "The numbers in the different States according to the most accurate 
accounts we could obtain were : New Hampshire, 102,000 ; Massachusetts, 860,000 ; 
Rhode Island, 58,000; Connecticut, 202,000; New York, 288,000; New Jersey, 
138,000; Pennsylvania, 360,000; Delaware, 37,000; Maryland (including three 
fifths of 80,000 negroes), 218,000 ; Virginia (including three fifths of 280,000 negroes), 
420,000 ; North Carolina (including three fifths of 60,000 negroes), 200,000 ; South 
Carolina (including three fifths of 80,000 negroes), 150,000; Georgia (including 
three fifths of 20,000 negroes), 90,000. Total population of the United States 
(including 520,000 negroes), 2,781,000." 

It is to be noted that these figures differed greatly from the estimate of popula- 
tion which had appeared in the Pennsylvania Packet, Dec. 11, 1786, as follows : New 
Hampshire, 150,000; Massachusetts, 400,000 ; Rhode Island, 59,670 ; Connecticut, 
192,000; New York, 250,000; New Jersey, 150,000; Pennsylvania, 300,000; 
Delaware, 50,000; Maryland, 320,000; Virginia, 650,000; North Carolina, 
300,000; South Carolina, 225,000; Georgia, 56,000. 



288 THE GREAT COMPROMISE 

composed of G. Morris, Gorham, Randolph, Rutledge, 
and King. Three days later, the Committee reported, 
fixing the number of Representatives from each State, 
respectively, for the first meeting of the Legislature 
(with a total of fifty-six Representatives, changed later 
to sixty -five), and also providing that "as the present 
situation of the States may probably alter as well in 
point of wealth as in number of inhabitants", the 
Legislature should have power from time to time to 
increase the numbers ; it also reported that, in case of 
admission of new States, the Legislature should "possess 
authority to regulate the number of Representatives 
upon the principles of wealth and number of inhab- 
itants." The latter part of the Report was at first 
accepted without debate (on July 9). But on a 
proposal by Randolph (on July 10) that a census be 
taken to ascertain the alterations in population and 
wealth of all the States, at regular intervals, and that 
the Legislature arrange the representation accordingly, 
vigorous opposition arose to the allowance of wealth 
as a basis for representation. Wilson, Madison, 
Sherman, Dr. W. S. Johnson, and Gorham favored 
fixing numbers alone as the perpetual standard. 
"Wealth is an impracticable rule", said Wilson, and 
even if it were not, population is "a sufficiently accurate 
measure of wealth." Underlying the whole debate 
was the feeling by some of the Northern delegates that 
slaves, if regarded by the Southerners as property, 
ought not to receive any representation whatever. 1 
Perceiving this opposition to a representation of their 
slaves under the guise of property, the Southern 

1 Paterson, on July 9, said that he could regard negro slaves in no light but as 
property* and that if slaves were not represented in the States as voters they should 
not be in the General Government. New Jersey would, therefore, vote against 
"wealth" as a basis for representation. Gen. Pinckney, on July 10, "dwelt on the 
superior wealth of the Southern States and insisted on its having its due weight in 
the Government." 



FRIDAY, JULY 13, 1787 289 

States now sought a change in the entire basis of 
popular election of the House. It will be recalled 
that, a month prior, on June 11, it had been voted that 
representation of the States in the House should be 
proportionate to the whole number of whites, together 
with two thirds of all others (except non-taxpaying 
Indians). Butler and Pinckney, now on July 11, 
insisted that blacks be included in the representation 
equally with whites. Gerry, Gorham, Mason, and 
Williamson opposed and the proposal was defeated, 
only Delaware, South Carolina, and Georgia favoring 
it. Thereupon, those delegates who took the position 
that negroes, if regarded by the South as property, 
were entitled to no more representation than any other 
form of property, now moved to exclude the negroes 
from even the three fifths representation which had 
been previously agreed upon. And this motion was 
adopted by a vote of six to four (Connecticut, Virginia, 
North Carolina, and Georgia being in the minority). 1 
This action, however, so aroused the South that Davie 
of North Carolina stated that "he was sure that North 
Carolina would never confederate on any terms that 
did not rate them (the negroes) at least as three fifths. 
If the Eastern States meant, therefore, to exclude them 
altogether, the business was at an end." To this, 
a reply was made by G. Morris that "he came here to 
form a compact for the good of America", and that it 
was vain for some States to insist on such a compact 
on matters that other States will never agree to. It 
was G. Morris himself, however, who now provided 
a bridge over the difficulties which had arisen. On 
July 12, he suggested that to the clause empowering 
the Legislature to vary the representation according 

1 It is to be noted that South Carolina delegates voted with the Northern States 
to exclude the three-fifths representation, not because they favored the proposal, 
but because they wished the whole number of negroes to be counted in establishing 
their population. 



290 THE GREAT COMPROMISE 

to the principles of wealth and numbers of inhabitants, 
there be added a proviso, which, as amended by him, 
read : "That direct taxation shall be in proportion to 
representation." The purpose of this provision was 
to lessen the inducement to the Southern States to seek 
to increase their representation ; since, by so doing, 
they would proportionally increase their share of the 
tax burden. It is important to note, however, that 
Morris and some other delegates from the North were 
actuated quite as much by their fears of conditions 
which might arise in the West, as by their anxiety over 
the South. They apprehended that the Western States, 
by increasing more rapidly in population than in 
wealth, might acquire a majority in Congress and tax 
unduly the property of the East. Against such possi- 
bilities, Morris' motion formed a protection. The 
motion was accepted without debate ; and thus there 
was introduced into the Constitution the principle 
which had been long fought for in the American 
Colonies that taxation and representation should 
go together. The Convention now made it certain 
that "when Congress, and especially the House of 
Representatives (where it was specifically provided 
that all revenue bills must originate), voted a tax upon 
property, it should be with the consciousness and under 
the responsibility that in so doing, the tax voted would 
proportionally fall upon the immediate constituents of 
those who imposed it." l 

The danger lest the South would seek to gain excessive 
representation for its slaves being now lessened, since 
such increase would result in proportionate increase of 
taxation upon it, Ellsworth thought it safe to renew the 
proposal to allow representation of three fifths of the 
slaves, and he suggested that "the rule of contribution 

1 Puller, C. J., in Pottock v. Farmers lA>an and Trust Co. (1895), 158 U. $. 420, 
556, 557. 



FRIDAY, JULY 13, 1787 291 

by direct taxation . . . shall be the number of white 
inhabitants and three fifths of every other description", 
until some other rule could be devised by the Legis- 
lature. Randolph agreed with him that some rep- 
resentation of the slaves ought to be granted, and 
that, "as it was perceived that the design was enter- 
tained by some of excluding slaves altogether, the 
Legislature ought not to be left at liberty." He 
wished a binding provision in the Constitution. He 
proposed, therefore, that a census be taken every ten 
years of all the inhabitants of the States according to 
the total whites and three fifths of the blacks ratio. 1 
Wilson agreed to this, but suggested that it be phrased 
so as to provide that the Legislature of the United 
States should proportion direct taxation in accordance 
with such census and that representation of the States 
be proportioned according to direct taxation. The 
Convention adopted this motion ; and thus it entirely 
reversed its action of the previous day excluding 
representation of three fifths of the slaves. Madison's 
Notes contain no hint of the real reasons which brought 
about this change. The account given by Rufus King 
of Massachusetts, many years later, probably explains 
the action. Speaking in the Senate, March, 1819, he 
said : 2 

"The present House of Representatives consists of one 
hundred eighty-one members which are apportioned among 
the States in a ratio of one Representative for every 35,000 

1 Hamilton wrote in The Federalist, No. 54 : "In one respect, the establishment 
of a common measure for representation and taxation will have a very salutary 
effect. As the accuracy of the census to be obtained by the Congress will neces- 
sarily depend, in a considerable degree, on the disposition, if not the coBperation, 
of the States, it is of great importance that the States should feel as little bias as 
possible to swell or reduce the amount of their numbers. Were their share of rep- 
resentation alone to be governed by this rule, they would have an interest in exag- 
gerating their inhabitants. Were the rule to decide their share of taxation alone, 
a contrary temptation would prevail. By extending the rule to both objects, the 
States will have opposite interests, which will controul and balance each other, 
and produce the requisite impartiality." 

2 Life and Correspondence of Rufus King (1900), VI, 697-700. 



THE GREAT COMPROMISE 

Federal numbers, which are ascertained by adding to the 
whole number of free persons three fifths of the slaves. . . . 
Thus, while 35,000 free persons are requisite to elect one 
Representative in a State where slavery is prohibited, 
25,559 free persons in Virginia may and do elect a Represent- 
ative so that five free persons of Virginia have as much 
power in the choice of Representatives to Congress, and in 
the appointment of Presidential electors, as seven free per- 
sons in any of the States in which slavery does not exist. 
This inequality in the appointment of Representatives was 
not misunderstood at the adoption of the Constitution ; but 
as no one anticipated the fact that the whole of the revenue 
of the United States would be derived from indirect taxes 
(which cannot be supposed to spread themselves over the 
several States according to the rule for the appointment of 
direct taxes), but it was believed that a part of the contribu- 
tion to the common treasury would be apportioned among 
the States by the rule for the apportionment of Representa- 
tives the States in which slavery is prohibited ultimately, 
though with reluctance, acquiesced in the disproportionate 
number of Representatives. . . . The concession was, at 
the time, believed to be a great one, and has proved to have 
been the greatest which was made to secure the adoption of 
the Constitution. . . . The departure from this principle 
(equality of rights) in the disproportionate power and influ- 
ence allotted to the slave States, was a necessary sacrifice 
to the establishment of the Constitution." 

Having decided on population as a basis for represen- 
tation, it became necessary to change the vote passed 
on July 9 which allowed the Legislature, on admission 
of new States, to regulate the number of Representatives 
"upon the principle of their wealth and number of 
inhabitants." Accordingly, Randolph, on July 13, 
moved to strike out the word "wealth." On this 
motion, Wilson made a powerful speech, in which he 
said that he "could not agree that property was the 
sole or primary object of Government and society. 



FRIDAY, JULY 13, 1787 293 

The cultivation and improvement of the human mind 
was the most noble object. With respect to this 
object, as well as to other personal rights, numbers 
were surely the natural and precise measure of repre- 
sentation. And with respect to property, they could 
not vary much from the precise measure." The word 
"wealth" was voted to be stricken out by nine States, 
Delaware being divided. And in this manner, the first 
attempt to give property special recognition under the 
Constitution was defeated. 

This debate made plain a line of cleavage in the 
Convention which was to become even more apparent 
the division between the Southern and Northern 
States. As early as June 30, James Madison had said 
that: "The States were divided into different inter- 
ests, not by their difference of size, but by other cir- 
cumstances, the most natural of which resulted partly 
from climate, but principally from the effects of their 
having or not having slaves. These two causes con- 
curred in forming the great division of interests in 
the United States. It did not lie between the large 
and small States ; it lay between the Northern and 
Southern." On July 14, he said: "It seemed now 
to be pretty well understood that the real difference of 
interests lay not between the large and small, but 
between the Northern and Southern States. The 
institution of slavery and its consequences formed the 
line of discrimination." Rufus King had also said, on 
July 13, that he was "fully convinced that the question 
concerning a difference of interests did not lie where it 
had hitherto been discussed, between the great and 
small States, but between the Southern and Eastern." 
George Mason of Virginia, on July 13, said that he had 
"always conceived that the difference of interest in the 
United States lay not between the large and small, but 
the Northern and Southern States." Charles Pinckney 



294 THE GREAT COMPROMISE 

said, on July , that there was "a real distinction 
between the Northern and Southern, the latter having 
peculiar commercial interests." 

When the debate over the question of equality of 
representation in the Senate first arose, the line of 
division had been clearly between the larger and the 
smaller States. But towards the end of the debate, 
this line had plainly shifted. There were delegates 
from the larger States sharing the views of G. Morris, 
who started out with violently opposing equality 
of representation, but who modified his views, when 
the Convention refused to adopt wealth as a basis 
of representation in the House and when it yielded to 
the Southern insistence that three fifths of the slaves 
should be counted as inhabitants. This move con- 
vinced him that "the Southern gentlemen will not be 
satisfied unless they see the way open to their gaining 
a majority in the public councils. The consequence 
of such a transfer of power from the maritime to the 
interior and landed interest will be such an oppression 
of commerce, that he shall be obliged to vote for the 
vicious principle of equality in the second branch in 
order to provide some defence for the Northern States 
against it." The result of the insistence by the South 
on protecting their slave property was to favor the 
acceptance of the compromise in the North, so as to 
increase the influence of the North in the Senate. In 
fact, this was an aspect of the compromise which 
Madison (who opposed it) regarded (July 14) as very 
serious, viz. "the perpetuity it would give to the 
preponderance of the Northern against the Southern 
States." 

The Decennial Census 

In connection with this matter of elimination of 
wealth as a basis for representation, the provision for 



FRIDAY, JULY 13, 1787 295 

a change in the representation of the States at regular 
intervals should be especially noted ; for the reasons 
then existing for the inclusion of this provision prevail 
today. It arose as follows. The Compromise Com- 
mittee's Report of July 5 provided for a representation 
only of the States then in the Union one member for 
every 40,000 inhabitants. Nothing was said about 
any change in the future. The Special Committee, 
which reported on July 9, fixed a specific number of 
Representatives for each State, and authorized the 
Legislature to increase the number from time to time. 
Such an authority left the Legislature entirely supreme. 
It was at once objected by Randolph that, "as the 
number was not to be changed till the National Legis- 
lature should please, a pretext would never be wanting 
to postpone alterations, and keep the power in the 
hands of those possessed of it." * He accordingly moved 
(July 10) "that a census be taken at regular intervals", 
and that the Legislature arrange the representation ac- 
cordingly. Mason (July 11) supported this, saying that 
"from the nature of man, we may be sure that those who 
have power in their hands will not give it up while they 
can retain it." As the Southern States increased, they 
must have some guarantee of increase in their Represent- 
atives, and this provision must be inserted in the 
Constitution. Williamson insisted on "making it the 
duty of the Legislature to do what is right and not 
leaving it at liberty to do or not to do it." Randolph 
urged that the power was now vested in the North and 
"would not be voluntarily renounced, and that it was 
consequently the duty of the Convention to secure its 

1 It may be noted that the Special Committee fixed a House consisting of fifty- 
six Members. This was referred to another Committee which reported, July 10, 
advising a House of sixty-five members the increases suggested being seven from 
the States North of the Potomac and two from the States South. The total from 
the Northern States (including Rhode Island) would be forty-two ; from the South 
twenty-three. Even if Maryland with its six votes were to be included with the 
South, there was a strong majority in the North. 



296 THE GREAT COMPROMISE 

renunciation when justice might so require, by some 
Constitutional provision." He urged that it was 
"inadmissible that a larger and more populous district 
of America should hereafter have less representation 
than a smaller and less populous district. If a fair 
representation of the people be not secured, the injustice 
of the Government will shake it to its foundations." 
Sherman of Connecticut and Gorham of Massa- 
chusetts were of the opinion that "the periods and 
rules of revising the representation ought to be fixed by 
the Constitution." General Pinckney "foresaw that 
if the revision of the census was left to the discretion 
of the Legislature, it would never be carried into 
execution. The rule must be fixed and the execution 
of it enforced by the Constitution." 

There was a two-fold fear of leaving to the Legis- 
lature the ppwer of future alterations in the rep- 
resentation of the States ; first, lest the majority in 
control at any particular time should not make any 
change in the numbers of representation which would 
affect that control ; second, lest the Legislature might 
change the basis of representation and might eliminate 
or increase the representation of the slaves. Ran- 
dolph's motion, therefore, after being amended, was 
adopted (as above described) providing for a decennial 
census of inhabitants and for an apportionment by the 
Legislature of the United States of both representation 
and direct taxation "accordingly." This provision 
was, in substance, included in the draft of the 
Constitution reported by the Committee of Detail 
on August 6. 1 It was debated and accepted on August 

1 In this Report, the Committee of Detail reinserted the provision, allowing 
in the future one Representative for every 40,000 inhabitants. This, which had 
been the original proposal of the Compromise Committee of July 5, had entirely 
disappeared from the votes taken by the Convention subsequently. No such pro- 
vision occurred in the resolutions submitted to the Committee of Detail on July 26. 
On August 8, Madison thought 1 for 40,000 would "render the number of Repre- 
sentatives excessive" if the Union should continue to increase. Gorham, on the 



FRIDAY, JULY 13, 1787 



297 



8, and August 21 ; and it appears in the final draft of 
the Constitution as Article One, section 2, clause three, 
as follows : 

"Representatives and direct taxes shall be apportioned 
among the several States which may be included within this 
Union, according to their respective numbers, which shall be 
determined by adding to the whole number of free persons, 
including those bound to service for a term of years, and 
excluding Indians not taxed, three fifths of all other persons. 
The actual enumeration shall be made within three years 
after the first meeting of the Congress of the United States, 
and within every subsequent term of ten years, in such man- 
ner as they shall by law direct. . . . " 

It will be noted that the only reason for establishing 
a census by the Constitution was to afford a basis 
for a decennial reapportionment of Representatives. 1 
A failure of Congress to make an apportionment in 
accordance with this provision is a violation of the 
Constitution. Such a failure to comply with the 

other hand, doubted that the Government would last so long as to produce this 
effect : " Can it be supposed that this vast country including the Western Territory 
will 150 years hence remain one Nation?" The provision was changed on motion 
of Sherman and Madison to read "not exceeding one for every 40,000." 

On September 17, at the very end of the Convention, it was voted to change this 
to "not exceeding one for every 30,000." 



CENSUS 


DATE OF APPORTIONMENT ACT 


STATES 


MEMBEKS 


RATIO 




1789 


13 


65 


30,000 


1790 


Apr. 14, 1792 


15 


105 


33,000 


1800 


Jan. 14, 1802 


16 


141 


33,000 


1810 


Dec. 21, 1811 


17 


181 


35,000 


1820 


Mar. 7, 1822 


24 


213 


40,000 


1830 


May 22, 1832 


24 


240 


47,700 


1840 


June 25, 1842 


26 


223 


70,680 


1850 


May 23, 1850 


32 


234 


93,423 


1860 


May 23, 1860 


34 


243 


127,381 


1870 


Feb. 2, 1872 


37 


293 


131,425 


1880 


Feb. 25, 1882 


38 


325 


151,911 


1890 


Feb. 7, 1891 


44 


856 


173,901 


1900 


Jan. 16, 1901 


45 


386 


194,182 


1910 


Aug. 8, 1911 


46 


433 


211,877 


1920 


Not made up to 


48 


435 






May, 1928 









298 THE GREAT COMPROMISE 

Constitution not only affects the representation of the 
respective States in Congress, but what is far more 
important affects the number of electoral votes 
which the States may respectively cast for President ; 
for, under Article II, section 1 of the Constitution as 
finally drafted, a State's electoral vote depends upon 
"the whole number of Senators and Representatives 
to which the State may be entitled in the Congress." 
A failure by Congress to apportion the Representatives 
according to the respective State populations might, 
in a close Presidential campaign, materially affect the 
result of the election. 1 

OUT OF CONVENTION 

In the debate which had been taking place on 
representation in the House considerable apprehension 
had been expressed, by G. Morris and some of the 
Eastern delegates, at the possible growth of the Western 
States, to the disadvantage of the Eastern. "If the 
Western people get the power into their hands, they will 
ruin the Atlantic interests", said Morris. "The back 
members are always most adverse to the best meas- 
ures." And Gerry of Massachusetts said that "they 
will oppress commerce and draw our wealth into the 
Western Country. To guard against these conse- 
quences, he thought it necessary to limit the number 
of new States to be admitted into the Union, in such 
a manner that they should never be able to outnumber 
the Atlantic States." Madison, Mason, and Butler 
from the South, however, did not share these fears. 
"People are constantly swarming from the more to the 
less populous places from Europe to America, from 

1 See speech of Clarence J. McLeod, 70th Cong., 1st Sess., May 24, 1928. As to 
differing methods for apportioning representation advocated by Jefferson and 
Webster, see Story on the Constitution (5th Ed.) II, 495-512. See also The Federalist, 
No. 78. 



FRIDAY, JULY 13, 1787 299 

the Northern and Middle parts of the United States 
to the Southern and Western. They go where land 
is cheaper because their labour is dearer", said Madi- 
son with true insight. "The people and strength of 
America are evidently bearing southwardly and south- 
westwardly", said Butler. 

It was a striking fact that on the very day when this 
discussion took place, Congress, sitting in New York, 
adopted the famous Ordinance for the Government of 
the Northwest Territory, which made provision for the 
admission of five new States as soon as each acquired 
a population practically equal to that of Delaware, i.e., 
60,000 inhabitants. This matter had been long pend- 
ing. Jefferson had drafted, in 1784, a resolve for the 
government of the lands ceded by the States and by 
Great Britain to the United States, and had made the 
first suggestion that slavery be abolished in this whole 
territory from Florida to the Northern boundary 
a proposal which Congress had rejected. In 1786, 
a Committee headed by Monroe had drafted an 
ordinance, with no reference to slavery in it. A 
jealousy of the possible political power of new Western 
States impeded any action by Congress. In March, 
1787, a meeting was held in Boston, by a number of 
military officers and other men who were willing to 
become pioneers, which formed The Ohio Company for 
making settlements north of the Ohio River. The 
Company, with Gen. Rufus Putnam, Winthrop Sar- 
gent, Rev. Manasseh Cutler of Massachusetts, and Gen. 
Samuel Holden Parsons of Connecticut as its leading 
forces, made an application to Congress for the purchase 
of lands adequate to their purposes, offering to purchase 
1,500,000 acres for $1,000,000, payable in the United 
States certificates of debt (then worth, however, only 
eight cents in specie). Such a proposal, which might 
result in some reduction of the Continental indebted- 



300 THE GREAT COMPROMISE 

ness, was welcomed by Congress ; and a new 
Committee was appointed, on July 9, to consider a 
new draft for an Ordinance for the government of this 
Western territory. On July 11, this Committee, con- 
sisting of Richard Henry Lee (who had just been 
spending a week in Philadelphia, conferring with the 
delegates to the Convention), Edward Carrington of 
Virginia, John Kean of South Carolina, Melancthon 
Smith of New York, and Nathan Dane of Massa- 
chusetts, reported an entirely new draft of an Ordinance, 
containing provisions for freedom of religious worship, 
a bill of rights, prohibition of slavery, and a clause 
making the significant provision that: "In the just 
preservation of rights and property, it is understood 
and declared that no law ought ever to be made or have 
force in the said territory that shall, in any manner 
whatever, interfere with or affect private contracts or 
engagements, bona fide and without fraud, previously 
formed." 1 The honor of framing this famous docu- 
ment has been ascribed to various persons Nathan 
Dane, Richard Henry Lee, Manasseh Cutler, and 
Rufus King ; and each is probably entitled to a share. 2 
To Jefferson, however, is due the chief honor of having 
been the first to suggest exclusion of slavery from the 
whole of the Western and Southern lands belonging 
to the United States. 

On this July 13, this Ordinance was passed in Con- 
gress, by the votes of Georgia, South Carolina, North 
Carolina, Virginia, Delaware, New Jersey, New York, 
and Massachusetts all the States then present 
(Pennsylvania, Maryland, New Hampshire, Con- 
necticut, and Rhode Island being absent). And, 

1 See Bancroft, II, Chapter VI ; Dr. Cutler and the Ordinance of 1787, by William 
F. Poole, North American Review (1876), CXX; History of the United States (1912), 
by Edward Channing III, Chap. 17, esp. bibliography, p. 551 ; History of the Con- 
stitution (1858),. by George Ticknor Curtis, II, 291 et seq. t 341 et seq. 

2 See Channing, III, 547, note. 



FRIDAY, JULY 13, 1787 301 

the next day (July 14) Richard Henry Lee wrote to 
Francis Lightf oot Lee : 1 

"After some difficulty, we passed an Ordinance for estab- 
lishing a temporary Government beyond the Ohio, as prepar- 
atory to the sale of that country. And now we are consid- 
ering an offer made to purchase 5 or 6 million of acres with 
public securities. I hope we shall agree with the offer, but 
really the difficulty is so great to get anything done, that it is 
not easy for the plainest propositions to succeed. We owe 
much money, the pressure of taxes is very great and much 
complained of. We have now something to sell that will 
pay the debt and discharge the greatest part of the taxes, 
and altho this same thing is in a fair way of being soon 
wrested from us by the Sons of Violence, yet we have a thou- 
sand little difficulties that prevent us from selling. I found 
the Convention at Philadelphia very busy and very secret. 
It would seem, however, from variety of circumstances that 
we shall hear of a Government not unlike the British Consti- 
tution, that is, an Executive, with branches composing a 
Federal Legislature and possessing adequate tone. This 
departure from simple Democracy seems indispensably 
necessary if any Government at all is to exist in North 
America. Indeed, the minds of men have been so hurt by 
the injustice, folly and wickedness of the State Legislatures 
and State Executives that people in general seem ready for 
anything. I hope, however, that this tendency to extreme 
will be so controuled as to secure fully and completely the 
democratic influence acting within just bounds." 

1 Letters of Richard Henry Lee (ed. by J. C. Ballagh, 1914), II. To General 
Washington, Lee wrote July 15 : " An object of much consequence this, since the 
extinguishment of this part of the public debt would not only relieve us from a very 
heavy burthen but by demolishing the ocean of public securities, we should stop 
that mischievous deluge of speculation that now hurts our morals and extremely 
injures the public affairs." In this letter Lee also said that the Ordinance was 
designed to provide "a strong-toned government" for the security of property 
"among uninformed and perhaps licentious people, as the greater part of those 
who go there are." See also W. P. Cutler in Mag. of Amer. Hist., XXII, 484. 

Jefferson, writing to W. Carmichael, Dec. 11, 1787, said that : " The sale of 
our Western lands is immensely successful " ; that 5,000,000 acres had been sold 
at private sale for $1.50 an acre in certificates and at public sale as high as 
$2.40 an acre ; and that by these means and taxes the public debt (originally 
$28,000,000) had been reduced, by October 1, 1787, to $12,000,000. 



302 THE GREAT COMPROMISE 

While the Congress was debating this Ordinance, 
Rev. Manasseh Cutler, one of the agents of the Ohio 
Company, who had been conferring with the Members 
of Congress in New York, from July 5 to July 10, and 
who had suggested to the Southern Members many 
amendments, took a trip to Philadelphia. He recorded 
in his diary his impressions of the conditions there. 
As he was "second, perhaps, to no living American 
except Dr. Franklin, in scientific attainments", and as 
no other man has left any contemporaneous account of 
the place in which the Convention was then sitting, 
his diary entries are of extreme interest. 1 On his 
arrival on July 1, he went to the Indian Queen Tavern, 
located "not far from the centre of the city. It is kept 
in an elegant style, and consists of a large pile of 
buildings, with many spacious halls and numerous 
small apartments appropriated for lodging rooms." 

"As soon as I had inquired of the barkeeper when I arrived 
last evening, if I could be furnished with lodgings, a livery 
servant was ordered immediately to attend me, who received 
my baggage from the hostler and conducted me to the apart- 
ment assigned by the barkeeper which was a rather small 
but a very handsome chamber (No. 9), furnished with a rich 
field bed, bureau, table with drawers, a large looking glass, 
neat chair and other furniture. Its front was east, and being 
in the third story, afforded a fine prospect towards the river 
and the Jersey Shore. The servant that attended me was 
a young, sprightly, well-built, black fellow, neatly dressed 
blue coat, sleeves and cape red, and buff waistcoat and 
breeches, the bosom of his shirt ruffled and hair powdered. 
After he had brought up my baggage and properly deposited 
it in the chamber, he brought two of the latest London maga- 
zines and laid them on the table. I ordered him to call a 
barber, furnish me with a bowl of water for washing, and to 
have tea on the table by the time I was dressed." 

1 Life, Journals and Correspondence of Manasseh Cutler (1888), I, 253-271. 



FRIDAY, JULY 13, 1787 303 

After these preliminaries, Cutler met many of the 
delegates to the Convention, which he described as 
follows : 

"Being told while I was at tea, that a number of the mem- 
bers of the Continental Convention now convened in this 
city for the purpose of forming a Federal Constitution lodged 
in this house and that two of them were from Massachusetts, 
immediately after tea, I sent into their Hall (for they live by 
themselves) to Mr. Strong and requested to speak with him. 
Mr. Strong very politely introduced me to Mr. Gorham of 
Charlestown, Mass., Mr. Madison and Mr. Mason and his 
son of Virginia, Governor Martin, Hon. Hugh Williamson, 
of North Carolina, the Hon. John Rutledge and Charles 
Pinckney of So. Carolina, Mr. Hamilton of New York who 
lodges in the house, and to several other gentlemen who were 
spending the evening there. I spent the evening with these 
gentlemen very agreeably. . . . We sat until half after 
one. . . . Mr. Strong proposed going with me in the morn- 
ing to Mr. Gerry's as early as I pleased, and so wished good- 
night. I rose very early this morning, and the servant 
assigned me came into the chamber before I was dressed to 
know my commands. Mr. Strong was up as early as myself 
and we took a walk to Mr. Gerry's in Spruce Street, where 
we breakfasted. Few old bachelors, I believe, have been 
more fortunate in matrimony than Mr. Gerry. His lady is 
young, very handsome and exceedingly amiable. . . . They 
have been married about eighteen months and have a fine 
son about two months old of which they appear both to be 
extravagantly fond. Mr. Gerry has hired a house and lives 
in a family state. I was surprised to find how early ladies in 
Philadelphia can rise in the morning and to see them all 
breakfast at half past five, when in Boston they can hardly 
see a breakfast table at nine without falling into hysterics." 

After visiting many points of interest in the city, on 
this July 13, Cutler described the State-House, and 
incidentally noted that the Federal Convention was 
sitting in a room upstairs : l 

1 See infra, p. 626. 



304 THE GREAT COMPROMISE 

"From Mr. Peale's we went to the State House. This is 
a noble building ; the architecture is in a richer and grander 
style than any public building I have before seen. The first 
story is not an open walk as is usual in buildings of this kind. 
In the middle, however, is a very broad cross aisle, and a 
floor above supported by two rows of pillars. From this 
aisle is a broad opening to a large hall toward the west end, 
which opening is supported by arches and pillars. In this 
Hall, the Courts are held, and, as you pass the aisle, you have 
a full view of the Court. The Supreme Court are now sit- 
ting. This bench consists of only three Judges. Their robes 
are scarlet, the lawyers' black. The Chief Judge, Mr. 
McKean, was sitting with his hat on, which is the custom, 
but struck me as being very odd, and seemed to derogate 
from the dignity of a Judge. The hall east of the aisle is 
employed for public business. The Chamber over it is now 
occupied by the Continental Convention, which is now sit- 
ting, but sentries are planted without and within to pre- 
vent any person from approaching near who appear to be 
very alert in the performance of their duty. ..." 

It is to be noted that the "hall east of the aisle", thus 
referred to, was the room in which the Declaration of 
Independence was signed. 1 Cutler then proceeded to 
call upon Dr. Franklin and his account of his interview 
is of interest, not only for its description of the man, 
but for its reference to the narrow escape which Franklin 
had from breaking the secrecy rule of the Convention : 

"Dr. Franklin lives in Market Street, between Second and 
Third Streets . . . but his house stands up a courtyard at 
some distance from the Street. We found him in his garden 
sitting upon a grass plat under a very large mulberry with 
several other gentlemen and two or three ladies. I saw a 
short, fat, trunched, old man in a plain Quaker dress, bald 
pate and short white locks, sitting without his hat under the 

1 Cutler, in his diary, describes a room in Carpenter's Hall in Philadelphia as 
that in which the Declaration of Independence was signed, and pictures it as filled 
with trophies of the War of the Revolution. Ijt is singular that he should have been 
so misinformed on a visit only thirteen years after the signing. 



SATURDAY, JULY 14, 1787 305 

tree ; and as Mr. Gerry introduced me, rose from his chair, 
took me by the hand, expressed his joy to see me, welcomed 
me to the city and begged me to seat myself close to him. 
His voice was low but his countenance open, frank, and 
pleasing. . . . The Doctor showed me a curiosity which he 
had just received and with which he was much pleased. It 
was a snake with two heads preserved in a large vial. . . . 
The Doctor mentioned the situation of this snake, if it was 
travelling among bushes, and the head should choose to go on 
one side of the stem of a bush and the other head should pre- 
fer the other side, and that neither of the heads would con- 
sent to come back or give way to the other. He was then 
going to mention a humorous matter that had that day taken 
place in Convention, in consequence of his comparing the 
snake to America, for he seemed to forget that everything in 
Convention was to be kept a profound secret ; but the 
secrecy of Convention matters was suggested to him, which 
stopped him and deprived me of the story he was going to 
tell. . . . Notwithstanding his age, his manners are per- 
fectly easy and everything about him seems to diffuse an 
unrestrained freedom and happiness. He has an incessant 
vein of humor, accompanied with an uncommon vivacity 
which seems as natural and involuntary as his breathing. 
We took our leave at ten and I retired to my lodgings. The 
gentlemen who lodged in the house were just sitting down to 
supper ; a sumptuous table was spread and the attendance 
in the style of noblemen. After supper, Mr. Strong came 
in and invited me into their Hall where we sat till twelve. 
Mentioning my engagement the next morning, Governor 
Martin, Mr. Mason, Mr. Strong and several of the other 
gentlemen wished to be of our party, but would have pre- 
ferred an earlier hour than six, on account of retiring in sea- 
son to attend the Convention/' 

SATURDAY, JULY 14, 1787 
IN CONVENTION 

Having disposed of three of the proposals by the 
Compromise Committee, the Convention had now 



306 THE GREAT COMPROMISE 

reached the critical moment. On this clay, Luther 
Martin, impatient over the long delays, "called for the 
question on the whole report", stating that, while he 
did not like it, "he was willing to make trial of the plan 
rather than do nothing"; he would, however, let the 
larger States separate and form two Confederacies 
rather than abandon the principle of equality of 
representation in the Senate. Dayton also said that 
he would in no event yield this security to the States. 
Though the debate as to the second branch of the 
Legislature had lasted from June 25 to July 2, and 
from July 5 to July 13, Wilson wanted more time to 
discuss a point "of such critical importance." Sher- 
man felt that as a great deal of time had been spent 
on this conciliatory plan, it ought not now to be gone 
over again. Gerry said that while the report was 
"not altogether to his mind, he would agree to it as 
it stood rather than throw it out altogether." Gerry's 
colleague from Massachusetts, King, on the other hand, 
announced that he "preferred the doing of nothing 
to an allowance of an equal vote to all the States. It 
would be better to submit to a little more confusion 
and convulsion than to submit to such an evil" ; and 
he boldly and baldly proclaimed his belief that the 
proposed Government would and should be "a General 
and National Government over the people of America. 
There never will be a case in which it will act as a Federal 
Government on the States, and not on the individual 
citizens." Caleb Strong differed from King, saying 
that "if no accommodation takes place, the Union 
itself must be soon dissolved", and that under such 
circumstances he "was compelled to give his vote for 
the report taken altogether." On the other side, 
Madison and Wilson, unmoved by the arguments for 
concession, still opposed the compromise as funda- 
mentally wrong in principle. "There was not a single 



SATURDAY, JULY 14, 1787 307 

case", said Wilson, "in which the General Government 
was not to operate on the people individually" ; hence 
there was no occasion for the States to be represented, 
as States, in the Government ; moreover, equality of 
State representation in the Senate would give a pre- 
ponderance to the Northern States in perpetuity. 
Controverting this last argument, Gerry was afraid 
that the new States in the West might ultimately 
preponderate, to the injury of the East ; and he wanted 
some provision made against this possibility. Sher- 
man, with broader vision, replied that no discrimination 
should be made against new States. "We are provid- 
ing for our posterity, for our children and our grand- 
children who would be as likely to be citizens of new 
Western States as of the old States." A motion made 
by Charles Pinckney providing for a specific and 
unequal number of votes for each State respectively 
in the Senate was lost by vote of four States to six. 1 
At the close of the discussion, the views of the two 
factions seemed as divergent as they had been a month 
before. But once more, for the third time, a Sunday 
intervened, giving opportunity for cool consideration. 

OUT OF CONVENTION 
Washington noted : 

"In Convention. Dined at the Cold Spring, Springsbury, 
with the Club and went to the play in the afternoon." 

This play at the Opera House was advertised as a 
"Concert" " Spectaculum Vitae an Opera called 
the Tempest or the Enchanted Island, altered from 
Shakespeare by Drydcn, to conclude with a Grand 
Masque of Neptune and Amphytrite, with entire new 
scenery, the music composed by Dr. Purcell." 

1 King in his Notes, July 15, states that this vote was lost by the vote of Massa- 
chusetts, "to my mortification", Gorham being absent and King voting aye. But 
his statement is erroneous, for the presence of Gorham would only have divided the 
vote of Massachusetts and the States would still have stood six to five in opposition. 



308 THE GREAT COMPROMISE 

Dr. Manasseh Cutler described, this day, in his 
diary a trip which he made to Bartram's famous 
botanical gardens and a breakfast at Gray's Tavern on 
the south side of the Schuylkill River " at the foot of 
the floating bridge" in company with Caleb Strong, 
Alexander Martin, George Mason, Hugh Williamson, 
Madison, Rutledge, and Hamilton. 1 

SUNDAY, JULY 15, 1787 

Washington noted : 

" Dined at Mr. Morris's and remained at home all day." 

One of the few statesmen of the day who advocated 
a general consolidation of the States into one Govern- 
ment was General Henry Knox, who wrote from New 
York, this day, to Rufus King the following extreme 
expression of this view : 

"I am happy the Convention continue together, without 
agitating the idea of adjournment. If their attempts should 
prove inadequate to effect capital alterations, yet experience 
will be gained, which may serve important purposes on an- 
other occasion. . . . The State systems are the accursed 
things which will prevent our being a Nation. The democ- 
racy might be managed, nay it would remedy itself after 
being sufficiently fermented ; but the vile State Governments 
are sources of pollution which will contaminate the American 
name, perhaps for ages machines that must produce ill, 
but cannot produce good. Smite them, in the name of God 
and the people." 

1 Cutler returned to New York on this day, after recording a description of 
Philadelphia in his diary, stating that it had 10,000 houses, and that "the State 
House, Hospital, and most of the other public buildings are magnificent, but it is 
singular that there are only two steeples in the city, while there are upwards ol 
twenty houses for public worship." 



MONDAY, JULY 16, 1787 309 

MONDAY, JULY 16, 1787 

IN CONVENTION 
Adoption of the Great Compromise 

As soon as the Convention met, the final vote was 
taken on the compromise, and it was carried by the 
votes of five States to four Connecticut, New 
Jersey, Delaware, Virginia, and North Carolina voting 
aye, and Pennsylvania, Maryland, South Carolina, 
and Georgia voting no, Massachusetts being divided 
(Gerry and Strong voting aye and King and Gorham, 
no). And so, by this close vote, and only by reason 
of the division in the Massachusetts delegation, this 
Great Compromise was adopted. Had it failed, the 
Convention itself would have failed ; for it is certain 
that the delegates of the small States would not have 
remained longer. Luther Martin very truly said, 
later, in his message to the Maryland Legislature, that 
for the past fortnight "we were on the verge of dis- 
solution, scarce hold together by the strength of a hair, 
though the public papers were announcing our extreme 
unanimity." 

The acceptance of the compromise was not only 
essential to the continuance of the Convention; but 
it also had the important effect of converting the 
representatives from Connecticut, New Jersey, and 
Delaware into ardent supporters of the new Govern- 
ment. As George Bancroft wrote (in 1882) : "From 
the day when every doubt of the right of the smaller 
States to an equal vote in the Senate was quieted, they 
so I received it from the lips of Madison, and so 
it appears from the records exceeded all others in 
zeal for granting powers to the General Government. 
Ellsworth became one of its strongest pillars/' l It is 
particularly to be noted that this whole contest was 

1 Bancroft, II, 88. 



310 THE GREAT COMPROMISE 

not one over the degree of power to be granted to the 
new Government, but on the degree of representation 
of the States. 1 

Moreover, the acceptance of the compromise by the 
Convention was not only a victory for the smaller 
States ; but it was a deserved victory. Writers on the 
Constitution have been prone to regard the leaders of 
these States as a somewhat fractious minority, to 
pacify whom the Nationalists were forced to yield their 
more valid principle of proportional representation. 
But the fact is that the small States were entirely right 
in believing that no such form of Government as the 
Nationalists, at that stage in the Convention, were 
supporting would ever be accepted by the people of 
the States a Government in which the National 
Legislature was practically supreme, having power to 
elect the Executive and the Judiciary, and to negative 
all State laws which it deemed to infringe on its own 
broad and practically unlimited National powers. 
Students of the Constitution often forget now that at 
the time of the compromise the form of Government 
proposed was radically different from that which was 
finally adopted. The degree of the change marked the 
wisdom of the delegates in modifying their views after 
repeated discussions of the effects of their proposals upon 
the varying needs and conditions of the different States 
and of the country at large. 

After the compromise was adopted, Randolph 
moved that the Convention adjourn temporarily, 
"that the large States might consider the steps proper 
to be taken in the present solemn crisis of the business, 

1 Madison wrote to Martin Van Buren, May 13, 1828: "The threatening con- 
test in the Convention of 1787 did not . . . turn on the degree of power to be 
granted to the Federal Government, but on the rule by which the States should be 
represented and vote in the Government. . . . The contests and compromises 
turning on the grants of power, tho very important in some instances, were knots 
of a less Gordian character." 



MONDAY, JULY 16, 1787 311 

and that the small States might also deliberate on the 
means of conciliation." He stated that he had come 
prepared to offer another scheme of adjustment, but 
that the vote taken rendered it useless. His proposed 
plan (which he had already communicated to Madison 
on July 10) was of great interest and has received less 
attention than it deserves in view of its very broad 
suggestions as to the functions of the Judiciary. It 
proposed, first, that in the Senate, each State have one 
vote on all legislation on thirteen specified subjects 
these subjects being substantially those over which 
Congress was later granted power, in the Report of the 
Committee of Detail of August 0, and that on all 
other subjects of legislation, the right of suffrage in the 
Senate should be by an equitable and proportionate 
representation ; second, that on some subjects a greater 
vote than a majority be required ; third, that the 
National Judiciary on appeal from a State should have 
power to adjudge void any negative of a State law by 
Congress which the Judiciary should regard as contrary 
to the powers granted by the Constitution; fourth, 
that: "Any individual conceiving himself injured or 
oppressed by the partiality or injustice of a law of any 
particular State may resort to the National Judiciary, 
who may adjudge such law to be void, if found contrary 
to the principles of equity and justice." l It was this 
last proposal which was the most extraordinary ; for 
it would have allowed the National Courts not only 
to hold void any State law found to be in conflict with 
the Constitution, but also any law found to be "con- 
trary to the principles of equity and justice/' No such 
a radical extension of judicial power had ever been 
suggested ; nor has such a proposal been made since. 

Paterson of New Jersey, who was not at all satisfied 
with the actual compromise, now stated that he was 

1 See text of the proposal in Documentary History of the Constitution, V, 437. 



312 THE GREAT COMPROMISE 

willing to adjourn sine die, "with all his heart/' 
General Pinckney was hotly opposed to such a sug- 
gestion ; Randolph said that he had never entertained 
such an idea; and Broom thought that "it would be 
fatal." Finally, it was agreed to adjourn to the next 
day. 

OUT OF CONVENTION 
Washington noted : 

" In Convention. Dined at Mr. Morris's, and drank tea 
(at Mr. Powell's) with Mrs. Powell." 



CHAPTER SIX 

COMPLETION OF THE PLAN 

July 17 Powers of Congress Negative on 

State Laws 

July 18 The Judiciary 

July 19, 20, 21, 24, 25 . Discussion of the Executive 

(July 22) (Sunday) 

July 23 Per Capita Vote in Senate Mode 

of Ratification 
July 26 Election of Executive 

TUESDAY, JULY 17, 1787 

IN CONVENTION 

Before the Convention met on this morning, there 
was a conference of a number of the delegates from the 
larger States to consider the situation. It was found 
that they were sharply divided, some being unwilling 
to risk a failure of the Convention by inflexibly opposing 
the equality of votes, others believing that, as they had 
a majority of votes in the Convention, they should 
propose such system as seemed best to them, regardless 
of the minority, others being inclined to yield. Nothing 
was done; and as Madison records, "it is probable 
that the result of this consultation satisfied the smaller 
States that they had nothing to apprehend from a union 
of the larger in any plan whatever against the equality 
of votes in the Senate." 

Powers of the National Legislature 

At the end of the preceding day, the Convention 
considered briefly what powers should be vested in the 



314 COMPLETION OF THE PLAN 

Legislature. Many of the delegates had wished to fix 
the powers, before they voted on the question of how 
the Legislature should be constituted, but it had been 
otherwise decided. Now, the very broad provision 
adopted by the Committee of the Whole was taken up, 
as follows: "To enjoy the Legislative rights vested 
in Congress by the Confederation, and moreover to 
legislate in all cases to which the separate States are 
incompetent or in which the harmony of the United 
States may be interrupted by the exercise of individual 
legislation." Butler thought the term "incompetent" 
required some explanation, 1 and he stated that "the 
vagueness of the terms rendered it impossible for any 
precise judgment to be formed." To this, Gorham 
replied that: "the vagueness of the terms constitutes 
the propriety of them. We are now establishing 
general principles, to be extended hereafter into details 
which will be precise and explicit." The Convention, 
by an equally divided vote, refused to recommit the 
subject "to the end that a specification of the powers 
comprised in the general terms might be reported." 
On July 17, Sherman, alarmed at the possible encroach- 
ments on States' Rights involved in these powers, 
proposed that the following change be made : 

"To make laws binding on the people of the United States 
in all cases which may concern the common interests of the 
Union ; but not to interfere with the Government of the 
individual States in any matters of internal police which 
respect the Government of such States only, and wherein the 
general welfare of the United States is not concerned." 

Wilson, one of the extreme Nationalists, favored this 
motion. That he should do so, was not surprising, 

1 The word "incompetent" was a somewhat singular term; and it is possible 
that it was taken from Pelatiah Webster's famous pamphlet of Feb. 16, 1783, con- 
taining a project for a new Constitution, in which he said : "I propose further that 
the powers of Congress . . . shall be restricted to such matters of general authority 
and utility to all the States as cannot come within the jurisdiction of any particular 
State or to which the authority of any particular State is not competent." 



TUESDAY, JULY 17, 1787 315 

since, had it been adopted in the final draft of the 
Constitution, Congress could have exercised the broad- 
est possible powers for the "general welfare." In 
view of the controversy which, later in our history, 
developed over the meaning of the general welfare 
clause in the taxing-power section of the Constitution 
as finally drafted, it is interesting to note this occurrence 
of the phrase "general welfare" thus early in the 
Convention. G. Morris expressed his opposition to 
Sherman's motion, on the sensible ground that there 
were cases in which "the internal police, as it would 
be called and understood by the States", ought to be 
infringed and legislated upon by the National Govern- 
ment, notably to prevent paper money. The motion 
was defeated by the decisive vote of eight States to two, 
only Connecticut and Maryland voting for it. Gunning 
Bedford of Delaware, seconded by G. Morris, then 
moved that the powers of Congress be altered so as to 
read : 

"To enjoy the Legislative rights vested in Congress by the 
Confederation, and moreover to legislate in all cases for the 
general interests of the Union, and also in those to which 
the States are separately incompetent, or in which the har- 
mony of the United States may be interrupted by the exer- 
cise of individual legislation." 

This gave to Congress even more extensive power 
than Sherman had proposed. It is slight wonder that 
Randolph himself exclaimed: "This is a formidable 
idea indeed. It involves the power of violating all the 
laws and Constitutions of the States and of inter- 
meddling with their police." Despite these facts, the 
Convention voted this broad power, by a vote of six 
States to four, Connecticut, Virginia, South Carolina, 
and Georgia voting against it. It is interesting to note 
that the small States of New Jersey, Delaware, and 
Maryland, which had hitherto been, in general, antago- 



316 COMPLETION OF THE PLAN 

nistic to the Randolph or Virginia Plan of Government, 
now voted for the grant of this broad power to Congress. 
Having won their contention as to equality of votes in 
the Senate, they were now willing to join hands with 
their opponents in making the Congress an adequate 
body. 

Negative on State Laws 

One special power vested in Congress by the vote of 
the Committee of the Whole now failed to meet the 
approval of the Convention, namely, the power to 
negative State laws "contravening in its opinion the 
Articles of Union." This power, accepted by the 
Committee on May 31, had been given further 
consideration, when, on June 8, Charles Pinckney 
had moved to vest even broader power in Congress by 
authorizing it to negative all State laws " which they 
should judge to be improper." Madison had seconded 
this, saying that such a power was "absolutely necessary 
to a perfect system. Experience had evinced a constant 
tendency in the States to encroach on the Federal 
authority, to violate National treaties, to infringe the 
rights and interests of each other, to oppress the 
weaker party within their respective jurisdiction." 
The alternative to such a power to negative was the 
use of force against State Governments, a "visionary 
and fallacious" suggestion, he said. Wilson said that 
"unless the General Government can check the State 
laws, the Nation may be involved in tumult and 
confusion" ; 1 that those States should, like individuals, 
submit to some control. "We are now one nation of 
brethren. We must bury our local interests and 
distinctions." Williamson, on the other hand, was 
"against giving a power that might restrain the States 
from regulating their internal police." Gerry was 

1 As reported in King's Notes. 



TUESDAY, JULY 17, 1787 317 

strongly opposed, saying that such a power might 
"enslave the States." Gunning Bedford of Delaware, 
Sherman, and Butler were also opposed. The proposal 
had been killed by a vote of seven to three, only 
Massachusetts, Pennsylvania, and Virginia voting for 
it, with Delaware divided. 

The more limited power to negative had been dis- 
cussed, on June 16, by John Lansing of New York, 
who said that : "The States will never feel a sufficient 
confidence in a General Government to give it a 
negative on their laws. The scheme is itself entirely 
novel. There is no parallel to it to be found." Again, 
on June 20, Lansing had said that "such a negative 
would be more injurious than that of Great Britain 
heretofore was." Luther Martin of Maryland had 
said that "the States, particularly the smaller, would 
never allow a negative to be exercised over their laws." 
On the other hand, Wilson had said (June 16) that such 
a negative was preferable to the proposal for coercion 
on the States, contained in Patersoii's New Jersey 
Plan. Mason, on June 0, had pointed out also that 
Paterson's Plan "could not be enforced without mil- 
itary coercion." 

Randolph, in the compromise which he had prepared 
to offer to the smaller States, had suggested the follow- 
ing modification of this power to negative : 

"4. That altho every negative given to the law of a 
particular State shall prevent its operation, any State may 
appeal to the National Judiciary against a negative; and 
that such negative, if adjudged to be contrary to the powers 
granted by the Articles of the Union, shall be void. 

5. That any individual conceiving himself injured or 
oppressed by the partiality or injustice of a law of any 
particular State may resort to the National Judiciary, who 
may adjudge such law to be void, if found contrary to the 
principles of equity and justice." 



318 COMPLETION OF THE PLAN 

These proposals by Randolph are especially to be 
noted, in view of the future action of the Convention 
as to the power to negative. It is remarkable that he 
was willing to entrust to the National Judiciary the 
power to hold a State law void, not only for unconsti- 
tutionally, but also for injustice. 

On this July 17, when the limited power to negative 
was considered by the Convention, vigorous opposition 
arose. Gouverneur Morris thought the power unneces- 
sary, "likely to be terrible to the States"; and that 
its proposal would "disgust all the States." Sherman 
also thought it unnecessary, since the State Courts 
would hold invalid any law contravening the authority 
of the Union, and since such a State law would not be 
"valid or operative", even if not negatived. Luther 
Martin of Maryland considered the power improper. 
Madison, on the other hand, said that the power was 
"the most mild and certain means of preserving the 
harmony of the system", and that confidence could not 
be placed in the State Courts, since in Georgia and 
Rhode Island the Judges could be displaced by the 
Legislatures. Charles Pinckney again supported 
Madison. The Convention reversed the action of 
the Committee of the Whole and defeated the whole 
proposal by a vote of seven to three, Massachusetts, 
Virginia, and North Carolina alone voting in its favor. 

As, however, one of the leading causes of the Con- 
vention had been the evils arising out of State legis- 
lation infringing treaties made by Congress, trespassing 
on the rights of other States, and oppressing individuals, 
and out of the lack of power in Congress to check such 
legislation, it was evident that some form of curb must 
be devised. As Madison wrote, later, "the obvious 
necessity of a control on the laws of the States so far 
as they might violate the Constitution and laws of the 
United States, left no option but as to the mode." 



TUESDAY, JULY 17, 1787 319 

Such mode might be either preventive or corrective. 
Three remedies had been suggested for consideration 
" a veto on the passage of the State laws, a Congressional 
repeal of them, a judicial annulment of them." l The 
first had now been rejected. Jefferson had written to 
Madison (as quoted above) proposing that the Judiciary 
should be relied on to hold any State law void which 
infringed the new Constitution. Richard Henry Lee 
had written to Mason, May 15, suggesting an express 
declaration in the new Constitution "that any State 
Act of legislation that shall contravene or oppose the 
authorized Acts of Congress or interfere with the ex- 
pressed rights of that body shall be ipso facto void and of 
no force whatever." 2 Such a declaration was now pro- 
posed in the Convention by Luther Martin of Maryland. 
As a substitute for the power to negative, he moved : 

"That the Legislative acts of the United States made by 
virtue and in pursuance of the Articles of Union, and all 
treaties made and ratified under the authority of the United 
States, shall be the supreme law of the respective States, as 
far as those acts or treaties shall relate to the said States, or 
their citizens and inhabitants and that the Judiciaries of 
the several States shall be bound thereby in their decisions, 
anything in the respective laws of the individual States to 
the contrary notwithstanding." 

This clause (taken almost verbatim from the Paterson 
Plan of June 14) was adopted without a dissenting vote, 

1 Madison to Nicholas P. Trist, Dec. 1831 ; to William C. Rives, Oct. 21, 18S3; 
to John Tyler, 1833. Writings of James Madison (Hunt's ed.), IX. 

2 Letters of Richard Henry Lee (ed. by J. C. Ballagh, 1914), II, 419 et seq. Nathan 
Dane of Massachusetts in an Address before the Massachusetts Legislature in 
November, 1786, had said that : "All questions arising on treaties, not adjusted by 
the contracting parties, ought clearly to be decided by the Judicial Courts of the 
respective countries, the constitutional bodies for this purpose; . . . any State, 
being but a part of our Nation . . . cannot pass any law which can operate to 
explain or restrict the force of a treaty. Perhaps it is the duty of Judges and jurors 
to consider such laws repugnant to treaties as void ; but to aid their resolution, if 
he might use the expression, it may be proper for Congress and the States to declare 
that such is the force of treaties and to prevert like difficulties in future." Inde- 
pendent Gazetteer, Nov. 30, 1786. 



COMPLETION OF THE PLAN 

and became one of the fundamental provisions of the 
Constitution. It not only declared the supremacy of 
the United States over the States, but made it the duty 
of the Judiciary to enforce this supremacy. 1 That 
it was Martin's understanding and intent that the 
State Judges must hold invalid and unconstitutional 
any State law passed in contravention of the Federal 
laws or treaties is clear ; for he was familiar with the 
fact that already in the various States the Judges were 
holding void State laws which infringed State Con- 
stitutions ; and, only four days later (on July 21), he 
opposed the association of the Federal Judges with 
the President in a power of veto, because, he said : 
"As to the constitutionality of laws, that point will 
come before the Judges in their proper official character. 
In this character, they have a negative on the laws. 
Join them with the Executive in the revision and they 
will have a double negative." And in his letter to 
the Maryland Legislature, later, Martin pointed out 
specifically that the Judges would determine whether 
laws of the State or of Congress and actions of the 
President and other officers were or were not violative 
of the Constitution. 2 But Martin did not intend or 
foresee the potent and far-reaching effect which his 
motion, by reason of amendments made to it later, 
would have in establishing the supremacy of the 

1 As Madison wrote to William C. Rives, Oct. 21, 1833: "It must be kept in 
mind that the radical defect of the old Confederation lay in the power of the State 
to comply with, to disregard, or to counteract the authorized requisitions and regu- 
lations of Congress ; that a radical cure for this fatal defect was the essential object 
for which the reform was instituted ; that all the friends of the reform looked for 
such a cure ; that there could, therefore, be no question but as to the mode of effect- 
ing it. . . . In every proceeding of the Convention where the question of para- 
mountship in the laws of the Union could be involved, the necessity of it appears 
to have been taken for granted." 

2 The Genuine Information, by Luther Martin, Elliots Debates, I, 380 : " Whether, 
therefore, any laws or regulations of the Congress, any acts of its President or other 
officers, are contrary to, or not warranted by the Constitution, rests only with the 
Judges, who are appointed by Congress, to determine, by whose determination every 
State must be bound." 



TUESDAY, JULY 17, 1787 

Constitution. When the Committee of Detail drafted 
its Report, on August 6, putting into more systematic 
form the various Resolutions adopted up to that time, 
it compressed Martin's proposal and made two vital 
changes in it, as follows : 

"The Acts of the Legislature of the United States made in 
pursuance of this Constitution, and all treaties made under 
the authority of the United States, shall be the supreme law 
of the several States, and of their citizens and inhabitants ; 
and the Judges in the several States shall be bound thereby 
in their decisions ; anything in the Constitutions or laws of 
the several States to the contrary notwithstanding." 

The first of the changes made was that the Federal 
laws were to be supreme over State Constitutions as 
well as over State laws a provision which Martin 
never intended and to which infringement on State 
Sovereignty he was violently opposed. 1 The second 
change was that a duty was imposed on "the Judges 
in the several States", instead of "the Judiciaries of 
the respective States." On August 23, the Convention 
further amended this Article (on motion of John 
Rutledgc) by providing that : " This Constitution and 
the laws of the United States made in pursuance 
thereof . . . shall be the supreme law of the several 
States." When the Committee on Style reported the 

1 Martin later wrote : " When this clause was introduced, it was not established 
that Continental Courts should be appointed for trial of all questions arising on 
treaties and on the laws of the General Government and it was my wish and hope 
that every question of that kind would have been determined in the first instance 
in the Courts of the respective States ; had this been the case, the propriety and the 
necessity that treaties duly made and ratified, and the laws of the General Govern- 
ment, should be binding on the State Judiciaries which were to decide upon them 
must be evident to every capacity ; while at the same time, if such treaties or laws 
were inconsistent with our Constitution and bill of rights, the Judiciaries of this 
State would be bound to reject the first and abide by the last, since in the form I 
introduced the clause, notwithstanding treaties and the laws of the General Govern- 
ment were intended to be superior to the laws of our State Governments, where 
they should be opposed to each other, yet that they were not proposed nor meant 
to be superior to our Constitution and bill of rights." See letter of Martin in 
Maryland Journal, March 21, 1788; Essays on the Constitution (1892), by Paul 
Leicester Ford, 360-371. 



COMPLETION OF THE PLAN 

final draft of the Constitution on September 12, this 
Article became Article VI (as it now appears in the 
Constitution) ; 

"This Constitution and the laws of the United States 
which shall be made in pursuance thereof ; and all treaties 
made, or which shall be made, under the authority of the 
United States, shall be the supreme law of the land ; and the 
Judges in every State shall be bound thereby, anything in 
the Constitution or laws of any State to the contrary not- 
withstanding." 

In this final draft, the phrase previously adopted 
"the supreme law of the several States" became "the 
supreme law of the land"; and "the Judges in the 
several States" became "the Judges in every State." 
And it is under this Article, as proposed originally 
by Luther Martin to guard against conflicts between 
State statutes and Federal laws, and as amended by 
motion of John Rutledge, that the Judges of every 
Court (State, inferior Federal, and Supreme) must 
uphold the supremacy of the Federal Constitution, 
whether against Acts of Congress or against State 
laws which may be held to infringe it. 

Charles Pinckney (on August 23), apparently dis- 
believing in the efficacy of Martin's original Resolution, 
again made an effort to vest in Congress power, by a 
two-thirds vote, to negative all State laws "interfer- 
ing in the opinion of the Legislature with the general 
interests and harmony of the Union." This was an 
even broader proposal than that which had been 
rejected on July 17. Madison and Langdon of New 
Hampshire favored the proposal, but Sherman, Mason, 
Williamson, Gouverneur Morris, and Ellsworth were 
opposed; and Rutledge said that: "If nothing else, 
this alone would damn and ought to damn the Con- 
stitution. Will any State ever agree to be bound hand 
and foot in this manner?" After a vote of six States 



TUESDAY, JULY 17, 1787 323 

to five rejecting commitment of his motion, Pinckney 
withdrew it, evidently satisfied that it could not be 
carried. It is to be noted that Madison never became 
reconciled to the rejection of this power to negative, 
although he recognized that the power vested in the 
Supreme Court to pass upon the constitutionality of 
State laws would cure many of the evils which he feared 
in State legislation. On August 28, while favoring 
a prohibition on the States to coin money or issue bills 
of credit, he stated that "he conceived, however, that 
a negative on the State laws could alone secure the 
effect. Evasions might and would be devised by the 
ingenuity of the Legislature." Madison, however, 
realized that such restrictions on the States would to 
some extent be enforced by the Supreme Court in 
holding State laws unconstitutional ; for, on September 
12, when the question was debated whether the States 
might not evade the prohibition against export duties 
by enacting inspection duties, and when it was asked : 
"How was redress to be obtained in case duties should 
be laid beyond the purpose expressed?" Madison 
replied : "There will be the same authority as in other 
cases. The jurisdiction of the Supreme Court must 
be the source of redress." This, he said, was the only 
provision "made by the plan against injurious acts 
of the States. His own opinion was, that this was 
insufficient. A negative on the State laws alone could 
meet all the shapes which these could assume ; but this 
had been overruled." 1 

1 Other Virginians also continued to urge the power to negative. James Monroe 
wrote to Jefferson, July 27, 1787 (Farrand, III, 65) : " I have heard from Becly tho' 
not from himself (who accompanied the Governor up, on expectation of being 
appointed clerk) they had agreed giving the United States a negative upon the laws 
of the several States. This I should think proper it will, if the body is well 
organized, be the best way of introducing uniformity in their proceedings that can 
be devised, of a negative kind or by a power to operate indirectly ; but a few months 
will give in the result, be it what it may." James McCIurg wrote to Madison, Aug. 
22, 1787 (Doc. Hist., IV, 264) : "I have still some hope that I shall hear from you of 
the reinstatement of the Negative as it is certainly the only means by which the 



324 COMPLETION OF THE PLAN 

And writing to Jefferson, October 24, 1787, he said : 

"It may be said that the Judicial authority under our new 
system will keep the States within their proper limits and 
supply the place of a negative on their laws. The answer is 
that it is more convenient to prevent the passage of a law 
than to declare it void, after it is passed ; that this will be 
particularly the case, where the law aggrieves individuals 
who may be unable to support an appeal against a State 
to the Supreme Judiciary, that a State which would violate 
the Legislative rights of the Union would not be very ready 
to obey a Judicial decree in support of them, and that a 
recurrence to force, \\hich in the event of disobedience would 
be necessary, is an evil which the new Constitution meant 
to exclude as far as possible. 

. A constitutional negative on the laws of the States 
seems equally necessary to secure individuals against en- 
croachments on their rights. The mutability of the laws of 
the States is found to be a serious evil. The injustice of 
them has been so frequent and so flagrant as to alarm the 
most stedfast friends of Republicanism. I am persuaded I 
do not err in saying that the evils issuing from these sources 
contributed more to that uneasiness which produced the 
Convention and prepared the public mind for a general 
reform, than those which accrued to our National character 
and interest from the inadequacy of the Confederation to 
its immediate objects. A reform, therefore, which does not 
make provision for private rights must be materially defec- 
tive. The restraints against paper emissions and violations 
of contracts are not sufficient. Supposing them to be 
effectual as far as they go, they are short of the mark. Injus- 
tice may be effected by such an infinitude of Legislative 
expedients that where the disposition exists, it can only be 
controuled by some provision which reaches all cases what- 
soever. The partial provision made, supposes the disposi- 
tion which will evade it." 

several Legislatures can be restrained from disturbing the order and harmony of the 
whole and the Government rendered properly national and one. I should suppose 
that some of its former opponents must, by this time, have seen the necessity of 
advocating it, if they wish to support their own principles." 



WEDNESDAY, JULY 18, 1787 325 

Powers of the Executive 

The Convention, on this July 17, voted to adopt the 
proposal made by the Committee of the Whole that 
there should be an Executive consisting of a single 
person, to be chosen by the National Legislature. It 
further voted to vest in him two powers "to carry 
into execution the National laws", and "to appoint 
to offices in cases not otherwise provided for"; and, 
four days later (on July 21), it vested in him the power 
to veto (as previously discussed). 

OUT OF CONVENTION 
Washington noted : 

"In Convention. Dined at Mrs. House's and made an 
excursion with a party for Tea to Gray's Ferry." 

In the diary of Jacob Hiltzheimer, it is said : 1 

"In the afternoon went with my wife, Matthew Clark- 
son and Mr. and Mrs. Barge to Gray's Ferry, where we 
saw the great improvements made in the garden, summer 
house and walks in the woods. General Washington and 
a number of other gentlemen of the present Convention 
came down to spend the afternoon." 

WEDNESDAY, JULY 18, 1787 

IN CONVENTION 
The Judiciary 

On this day, the Convention agreed upon the pro- 
visions for the Judiciary branch of the Government. 
There had been little discussion over this subject in 
the Committee of the Whole. The proposal for one 
Supreme Tribunal had been accepted without debate, 
on June 4 ; but the proposal that there should be 
inferior tribunals had occasioned some controversy. 

1 Washington After the Revolution (1898), by William Spohn Baker. Manasseh 
Cutler visited the Gray's Ferry garden, July 14. 



326 COMPLETION OF THE PLAN 

Rutledge of South Carolina, on June 5, had argued 
that "the State tribunals might and ought to be left 
in all cases to decide in the first instance, the right of 
appeal to the Supreme National Tribunal being suffi- 
cient to secure the National rights and uniformity of 
judgments" and that any other provision would make 
"an unnecessary encroachment on the jurisdiction of 
the States and create unnecessary obstacles to their 
adoption of the new system." Butler of South Caro- 
lina had stated that: "The people will not bear such 
innovations. The States will revolt at such encroach- 
ments." In view of the hot contentions made in later 
years by the Southern States, that the 25th Section 
of the Judiciary Act of 1789, which provided for 
appeals to the Supreme Court from the State Courts 
by writ of error, was utterly unconstitutional, it is 
curious to note that, in the Convention, these two 
South Carolina delegates were arguing for a vastly 
broader power of the Supreme Court over State Courts 
than was later vested by Congress. Sherman of 
Connecticut, agreeing with Rutledge and Butler, had 
deplored an expensive new system of Courts when the 
existing State Courts would answer the same purpose. 
In reply to Rutledge, Madison had pointed out unless 
there should be National inferior tribunals "dispersed 
throughout the Republic, with final jurisdiction in 
many cases, appeals would be multiplied to a most 
oppressive degree." He contended that such tribunals 
would be necessary to counteract local State prejudices, 
and that "an effective Judiciary establishment com- 
mensurate to the Legislative authority was essential." 
King, Wilson, and Dickinson had concurred with him. 
Finally, the matter had been compromised, on motion 
of Madison and Wilson, by providing that "the 
National Legislature be empowered to institute inferior 
tribunals", thus leaving it to the discretion of the 



WEDNESDAY, JULY 18, 1787 327 

Legislature to say whether or not any such tribunals 
should be constituted; and thus it came about that 
the National inferior Courts are now established by 
Congress and not by the Constitution itself. When 
this proposal of the Committee of the Whole was 
considered by the Convention, on this July 18, it again 
met with opposition. Butler said that " he could see 
no necessity for such tribunals, since the State tribunals 
might do the business/' Luther Martin said that "they 
will create jealousies and oppositions in the State 
tribunals, with the jurisdiction of which they will 
interfere." On the other hand, Randolph observed 
"that the Courts of the States cannot be trusted with 
the administration of the National laws. The objects 
of jurisdiction are such as will often place the general 
and local policy at variance." Gorham, G. Morris, 
and Mason agreed with him. Sherman was willing 
to leave the matter to the National Legislature, but 
he "wished them to make use of the State tribunals 
whenever it could be done, with safety to the general 
interest." The Convention then adopted the Com- 
mittee's proposal, with no State dissenting. 

The second subject of discussion as to the Judiciary, 
in the Committee of the Whole, had been the method 
of appointment of the Judges. Randolph's Resolution 
of May 29 provided for appointment by the National 
Legislature. This followed the practice under most 
of the State Constitutions ; for only in Massachusetts, 
New Hampshire, and New York were the Governors 
empowered to appoint the Judges, and even in those 
States the Governor's appointing power was shared 
with his Council. When the Committee debated this, 
on June 5, Wilson favored appointment by the Execu- 
tive, stating that "experience showed the impropriety 
of such appointments by numerous bodies", and that 
"intrigue, partiality and concealment were the neces- 



328 COMPLETION OF THE PLAN 

sary consequences." Rutledge, on the other hand, was 
against granting so great a power to any single person. 
Franklin opposed both methods. Madison favored 
choice by the Senate. The subject was postponed until 
June 13, when Madison, again contending that a whole 
Legislature was incompetent to pass upon the requisite 
qualifications for Judges, moved that appointment be 
made by the Senate, which, "as a less numerous and 
more select body, would be more competent." This 
was voted by the Committee. When the subject was 
considered by the Convention, on this July 18, Gorham 
moved that the Judges be nominated and appointed 
"by the Executive and by and with the advice and 
consent of the Senate." The motion was lost by an 
evenly divided vote. Madison then modified his pre- 
vious motion for choice by the Senate, so that "the 
Judges should be nominated by the Executive, and 
such nomination should become an appointment if not 
disagreed to within days by two thirds vote of 

the Senate." This proposal was debated on July 21, 
when Madison explained the reasons for his change of 
mind. As the Senate was now to be composed of equal 
votes from each State, if it should alone have the power 
of appointment, the Judges might be appointed by a 
minority of the people though by a majority of the 
States, and the appointments might be thrown entirely 
into the hands of the Northern States, and "a perpetual 
ground of jealousy and discontent would be furnished 
to the Southern States." The Executive, however, 
as a National officer, would represent the whole people. 
Randolph agreed with Madison, stating that appoint- 
ments by the Legislatures "have generally resulted 
from cabal, from personal regard or some other con- 
sideration than a title derived from proper qualifica- 
tions." Ellsworth, Gerry, and Mason were, however, 
opposed to augmenting the power of the Executive. 



WEDNESDAY, JULY 18, 1787 

Madison's motion was defeated, and the Convention 
voted for appointment of Judges by the Senate. 

The third question relating to the Judiciary taken 
up by the Convention on this July 18, was : What 
should be the jurisdiction of this National Judiciary? 
Randolph's original Resolution of May 29 had provided 
for original jurisdiction in the inferior National Tri- 
bunals and appellate jurisdiction for the Supreme 
Tribunal in the following class of cases: (a) "all 
piracies and felonies on the high seas ; (6) captures 
from an enemy ; (c) cases in which foreigners or 
citizens of other States applying to such jurisdiction 
may be interested ; (d) or which respect the National 
revenue; (e) impeachments of any National officers; 
(/) questions which may involve the National peace 
and harmony." Pinckney's Plan provided for a Su- 
preme Federal Court with appellate jurisdiction from 
the State Courts: (a) "in all causes wherein questions 
shall arise on the construction of treaties made by the 
United States ; (b) or on the law of nations ; (c) or on 
the regulations of the United States concerning trade 
and revenue ; (d) or wherein the United States shall 
be a party." His plan also provided for Federal 
Admiralty Courts in each State "for all maritime 
causes which may arise therein respectively." l Pat- 
erson's Plan had provided for a Supreme Tribunal 

1 In the Report to Congress made on August 7, 1786, by a sub-committee, and 
drafted by Charles Pinckney, a suggested amendment of the Articles of Confedera- 
tion provided for a Federal Judicial Court of seven Judges (to be appointed one 
from New Hampshire, Rhode Island and Connecticut; one from Massachusetts; 
and one from New York and New Jersey ; one from Pennsylvania, one from Dela- 
ware and Maryland, one from Virginia and one from North Carolina, South Caro- 
lina, and Georgia). It was to have power to try all crimes, offences and misbeha- 
vior in office by all officers appointed by Congress. It was also to have appellate 
jurisdiction from State Courts "in all causes wherein questions shall arise on the 
meaning and construction of treaties entered into by the United States with any 
foreign power, or on the law of nations, or wherein any question shall arise respecting 
any regulations that may hereafter be made by Congress relative to trade and com- 
merce, or the collection of Federal revenues, pursuant to powers that shall be vested 
in that body, or wherein questions of importance may arise, and the United States 
shall be a party." 



330 COMPLETION OF THE PLAN 

(with no inferior National Courts) which should have 
original jurisdiction only over impeachments of 
Federal officers, but which should have appellate 
jurisdiction (on appeal from the State Courts) in the 
following cases: (a) "touching the rights of Ambas- 
sadors ; (&) in all cases of captures from an enemy ; 

(c) in all cases of piracies and felonies on the high seas ; 

(d) in all cases in which foreigners may be interested ; 

(e) in the construction of any treaty or treaties ; (/) or 
which may arise on any of the acts for regulation of 
trade or the collection of the Federal revenue." 

When the Committee of the Whole had considered 
Randolph's proposal for the first time on June 12, it 
struck out the jurisdiction over "piracies and felonies 
on the high seas" and over "captures from an enemy" ; 
and it voted to give jurisdiction in "cases in which 
foreigners or citizens of two distinct States of the 
Union" may be interested. On June 13, Randolph 
had stated that he "observed the difficulty in establish- 
ing the powers of the Judiciary" ; and said that the 
object at present was merely "to establish this principle, 
to wit, the security of foreigners where treaties are in 
their favor, and to preserve the harmony of States and 
that of the citizens thereof. This being once estab- 
lished, it will be the business of a subcommittee to 
detail it." 1 He accordingly had moved that a broad 
outline alone should be made, as follows: "That the 
jurisdiction of the National Judiciary shall extend to 
cases which respect the collection of the National 
revenue; impeachments of any National officers and 
questions which involve the National peace and 
harmony." This had been adopted. Such an ex- 
traordinarily broad jurisdiction was far more radical 
than that which the Convention finally adopted or 
than now appears in the Constitution. On this July 

1 As reported in Yates' Notes. 



WEDNESDAY, JULY 18, 1787 331 

18, however, the jurisdiction was broadened still 
further, on motion of Madison, so as to read : "That 
the jurisdiction of the National Judiciary shall extend 
to cases under laws passed by the General Legislature ; 
and to such other questions as involve the National 
peace and harmony." The Convention voted for this, 
without dissent. And so it settled the jurisdiction of 
the Courts, i.e., the subjects over which their judicial 
power should extend. It is to be noted, however, that 
as Madison wrote later: "By questions involving the 
National peace and harmony, no one can suppose more 
was meant than might be specified by the Convention, 
as proper to be referred to the Judiciary either by the 
Constitution or the Constitutional authority of the 
Legislature. . . . That the Convention understood 
the entire Resolutions of Mr. Randolph to be a mere 
sketch in which omitted details were to be supplied and 
the general terms and phrases to be reduced to their 
proper details is demonstrated by the use made of them 
in the Convention. . . . Candour discovers no ground 
for the charge that the Resolutions contemplated a 
Government materially different from, or more National 
than, that in which they terminated. . . . The plan 
expressly aimed at a specification, and, of course, a 
limitation of the powers." l 

Opponents of the Court's power to pass on the 
constitutionality of Acts of Congress frequently ask : 
Why did not the framers of the Constitution expressly 
provide for such a power, if they intended the Court to 
possess it? The answer is, that the framers made no 
provision whatever as to the powers of the Court 
neither for this power nor for any other function or 
power exercised by the Court. It is always important 
to bear in mind that there is a vital distinction between 
a Court's jurisdiction and a Court's power. Judicial 

1 Writings of James Madison (Hunt's ed.), IX, Madison to John Tyler, 1833. 



332 COMPLETION OF THE PLAN 

power comprises the functions exercised by a Court after 
it has obtained jurisdiction. Having fixed the Court's 
jurisdiction, the delegates assumed that the Court, 
having obtained jurisdiction, would exercise all func- 
tions and powers which Courts were at that time in 
the judicial habit of exercising. One power which the 
State Courts were at this time exercising was that 
of holding State laws to be void if they infringed the 
written State Constitutions. The attention of the 
delegates had already been called to this exercise of 
power, in previous debates in the Convention. As 
early as June 4, Randolph's Resolution for a Council 
of Revision composed of the Executive and a number of 
the National Judiciary, with power to veto any Act of 
Congress, had occasioned vigorous debate ; for many 
delegates were opposed to the joining of the Judiciary 
in this veto function. Elbridge Gerry said that Judges 
ought not to decide on the policy of public measures : 
"They will have a sufficient check against encroach- 
ments on their own department by their exposition 
of laws which involved a power of deciding on their 
constitutionality. In some States, the Judges had 
actually set aside laws as being against the Con- 
stitution. This was done, too, with general appro- 
bation." Rufus King stated that he "was of opinion 
that the Judicial ought not to join it in negative of a 
law, because the Judges will have the expounding of 
those laws when they come before them ; and they 
will no doubt stop the operation of such as shall appear 
repugnant to the Constitution." l 

The Committee had voted to exclude the Judiciary 
from exercising this power of veto with the Executive. 
On June 6, the question had again been presented, 
Wilson favoring the proposition. Madison also favored 
it on several grounds, one of which was that "it would 

1 As reported in William Pierce's Notes. 



WEDNESDAY, JULY 18, 1787 333 

enable the Judiciary Department the better to defend 
itself against Legislative encroachments." King, 
Gerry, Charles Pinckney, and Dickinson were opposed, 
as it " involved an improper mixture of powers." The 
proposal was again voted down. On July 21 (three 
days after the jurisdiction of the National Judiciary 
had been established by the Convention) a third 
attempt was made by Wilson to join the Judiciary with 
the President in vetoing laws passed by Congress. 
He wished their power of veto to extend not only to 
unconstitutional laws but to unwise laws, for, said he : 
"It had been said that the Judges as expositors of the 
laws would have an opportunity of defending their 
constitutional rights. There was weight in this ob- 
servation, but this power of the Judges did not go far 
enough. Laws may be unjust, may be unwise, may be 
dangerous, may be destructive; and yet may not be 
so unconstitutional as to justify the Judges in refusing 
to give them effect." Ellsworth, Mason, and Madison 
favored Wilson's proposal. On the other hand, it was 
pointed out by several delegates that these laws might 
come up before the Courts in their judicial capacity, 
which would thus have a double chance of passing upon 
them an undesirable situation. Gerry, Gorharn, and 
Strong of Massachusetts stated that "it was making 
the expositors of the laws, the Legislators, which ought 
never to be done. . . . The power of making laws 
ought to be kept distinct from that of expounding the 
laws." Luther Martin said : "As to the constitution- 
ality of laws, that point will come before the Judges 
in their proper official character. In this character, 
they have a negative on the laws. Join them with the 
Executive in the revision and they will have a double 
negative." Rutledge said that "the Judges ought 
never to give their opinion on a law till it comes before 
them." Madison himself admitted (July 23) that: 



334 COMPLETION OF THE PLAN 

"A law violating a Constitution established by the 
people themselves would be considered by the Judges 
as null and void." But Madison, Wilson, G. Morris, 
and Mason, however, were afraid that the Legislature 
would be too powerful, unless this veto power in both 
Executive and Judiciary should be conferred in addition 
to the power of the Judges to declare a law null and void. 
Mason admitted that in their judicial capacity, the 
Judges *" could declare an unconstitutional law void"; 
but, he said, there were "unjust, oppressive, or perni- 
cious" laws which did not come plainly under the 
description of unconstitutional laws, and he wished the 
Judges to be empowered to aid "in preventing every 
improper law." 1 The proposal, however, was voted 
down for a third time. The proposal was renewed 
again, on August 15, by Madison, seconded by Wilson. 
Charles Pinckney then "opposed the interference of 
the Judges in the Legislative business ; it will involve 
them in parties, and give a previous tincture to their 
opinions." In this debate, there occurred the only 
reported instance in which any delegates opposed the 
exercise of the power to hold statutes void, and even 
these delegates did not deny the existence of the power. 
John F. Mercer of Maryland (who only attended the 
Convention from August 6 to August 17) said that 
"he disapproved of the doctrine that the Judges as 
expositors of the law should have authority to declare 
a law void. He thought laws ought to be well and 
cautiously made, and then to be uncontrollable." 
John Dickinson of Delaware said that he was "strongly 
impressed with the remark of Mr. Mercer, as to the 
power of the Judges to set aside the law. He thought 
no such power ought to exist. He was at the same 

1 The New York Constitution provided for a Council of Revision, composed of 
Governor and Judges, since " laws inconsistent with the spirit of their Constitution 
or with the public good may be legally and unadvisedly passed." 



WEDNESDAY, JULY 18, 1787 335 

time at a loss what expedient to substitute." The 
proposal to join the Judges with the President in a 
power to veto the laws was defeated for a fourth time. 1 
It thus appears that while many delegates expressly 
admitted the existence of the power of the Courts to 
hold Acts of Congress void, no delegates denied its 
existence, though two disapproved of both the existence 
and the exercise of power. There is one plain reason 
why the subject was not more fully discussed, which 
has not been adverted to by legal writers and that 
is, that the form in which the Constitution was drafted 
at the time of the debates on June 4, June 6, and July 
21 made it practically impossible that any case could 
arise in which an Act of Congress would be likely to be 
held unconstitutional. It will be noted that, on these 
dates, the powers of Congress were not specifically 
limited, as in the Constitution when finally adopted ; 
but that Congress was empowered "to legislate in all 
cases for the general interests of the Union and also in 
those to which the States arc separately incompetent, 
or in which the harmony of the United States may be 
interrupted by the exercise of individual legislation.'* 
Now, it is evident under such a broad grant of power, 
the discretion of Congress was practically unlimited. 
Certainly, no Court would ever hold that any specific 
act of legislation was not "for the general interests of 
the Union", or was not one "in which the States are 
separately incompetent", or was not one "in which the 
harmony of the United States may be interrupted" 
if Congress should have expressly determined to the 
contrary, by passing the statute. Hence, at that time, 

1 Madison, as late as 1817, thought that a qualified negative on Legislative bills 
by the Judiciary would have been better than the power of judicial review of stat- 
utes involved, in litigated cases. Writing to Monroe, Dec. 27, 1817, he said: 
"Such a controul, restricted to Constitutional points, besides giving greater stability 
and system to the rules of expounding the instrument would have precluded the 
question of a Judiciary annulment of Legislative Acts." 



336 COMPLETION OF THE PLAN 

it was almost impossible to conceive of a case arising, 
in which, as a matter of fact, a Court would be in 
position to hold an Act of Congress void. Substantially, 
the only case likely to arise, in which it could take such 
action, would be some case in which Congress had 
passed a law infringing the Judicial powers of the 
Courts or the Executive powers of the President. And 
it was perhaps for this reason that delegates referred, 
several times, to the exercise of the power by the Courts 
to prevent encroachment by the Legislature upon the 
Judiciary Department. When, however, in the later 
drafts of the Constitution adopted after August 6, the 
powers of Congress were specifically set forth and 
limited, then it was evident to everyone that these 
limitations were entirely useless and of no effect, unless 
a power lay somewhere to enforce them ; and the only 
power to enforce restraints or restrictions contained in 
a written Constitution is the Judicial power. If it did 
not exist there, it existed nowhere. Either the Con- 
stitution must be supreme, or Congress must be 
supreme. Both could not be. And the last thing 
that the delegates wanted or favored was a Congress 
with supreme and unlimited power. 

OUT OF CONVENTION 
Washington noted : 

"In Convention. Dined at Mr. (James) Milligan's and 
drank tea at Mr. Meredith's." 

THURSDAY, JULY 19, 1787 

IN CONVENTION 

After finally disposing of the subject of the Judiciary, 
the delegates again grappled, without success, with the 
method of appointment of the Executive, his term 
of office and eligibility to re-election subjects over 



THURSDAY, JULY 19, 1787 337 

which they had long and repeatedly struggled on June 
1 and 2, and July 9 and 17. (See discussion under date 
of July 26.) 

OUT OF CONVENTION 
Washington noted : 

" Dined (after coming out of Convention) at Mr. John 
Perm, the younger's. Drank tea and spent the evening at 
my lodging." 

On this day, the newspapers carried a despatch from 
Portsmouth, New Hampshire, to the effect that : 
"The General Court during their late session repealed 
the ten pound act, and thereby justified the conduct 
of the Justices of the Inferior Court who have uniformly 
opposed it as unconstitutional and unjust." l Thus, 
there was brought to the attention of the delegates, for 
the fourth time since they began their sessions, an 
instance of cases in which the State Courts had held 
statutes invalid. It is an interesting fact that this 
New Hampshire case should have been published on 
the very day when the Convention was discussing the 
subject of the National Judiciary. 

Madison wrote, this day, to Jefferson a letter express- 
ing more confidence than he had hitherto shown in the 
ultimate result : 

"The Convention continue to sit, and have been closely 
employed since the commencement of the session. I am 
still under the mortification of being restrained from dis- 
closing any part of their proceedings. As soon as I am at 
liberty, I will endeavor to make amends for my silence ; 
and if I ever have the pleasure of seeing you, shall be able 
to give you pretty full gratification. I have taken lengthy 
notes of every thing that has yet passed, and mean to go on 

1 Independent Gazetteer, July 18 ; Pennsylvania Packet, July 19 ; New York Daily 
Advertiser, July 14; New York Journal, July 19, 1787. See also letter of "Watch- 
man" in New Hampshire Spy, June 30, 1787; Life of William Plumer, (1857) by 
William Plumer, Jr., p. 59. 



338 COMPLETION OF THE PLAN 

with the drudgery, if no indisposition obliges me to dis- 
continue it. It is not possible to form any judgment of the 
future duration of the session. I am led by sundry cir- 
cumstances to guess that the public mind is very impatient 
for the event, and various reports are circulating which 
tend to inflame curiosity. I do not learn, however, that 
any discontent is expressed at the concealment ; and have 
little doubt that the people will be as ready to receive, as 
we shall be able to propose, a Government that will secure 
their liberties and happiness." 

FRIDAY, JULY 20, 1787 

IN CONVENTION 

The debate over the method of election of the 
Executive continued. The subject of impeachment 
was also considered. (See discussion under date of 
September 8.) 

OUT OF CONVENTION 

Washington noted : 

" In Convention. Dined at home and drank tea at Mr. 
[George] Clymer's." 

SATURDAY, JULY 21, 1787 

IN CONVENTION 

The day was chiefly spent in debate over the proposal 
to join the Judiciary with the President in a power to 
veto. It was defeated for the third time, and the 
Executive alone was vested with the qualified veto 
power, subject to overruling by two thirds of each 
branch of the Legislature (as discussed supra, June 4). 

OUT OF CONVENTION 
Washington noted : 

"In Convention. Dined at the Cold Spring, Springs- 
bury, with the Club of Gentlm. and Ladies. Went to the 
Play in the afternoon afterwards." 



SATURDAY, JULY 31, 1787 339 

The play at the Opera House was "A Concert", at 
which was recited, "A Moral Poem called The Crusade 
or the Generous Sultan, by Mr. James Thompson, 
Author of The Seasons, with the original Epilogue to 
Edward and Eleonora." l 

On this day, the Philadelphia papers for the first 
time took notice of the vigorous opposition to the new 
Constitution which had sprung up in New York, under 
the leadership of Governor George Clinton, who repre- 
sented the extremest devotion to State Sovereignty. 
This "idol" was now attacked in the Herald as follows : 2 

"In the beginning of the late war, the citizens of America 
looked up to a Foederal Government only for safety and 
protection ; they were then powerful and successful at 
home and abroad. As soon as they set up the idol of State 
Sovereignty, they forgot the rock from which they derived 
their freedom and independence, and confined their alle- 
giance and affections only to the State Governments; and 
hence the distress, confusion, debts and disgrace of the 
United States. Calamities have at last opened their eyes 
and they again turn to a Foederal Government for safety 
and protection. May the enemies of the new Confedera- 
tion, whether in Rhode Island or elsewhere, whether secret 
or open, meet with the fate of the disaffected in the late 
War." 

Very little opposition to the Convention in its early 
days had appeared in New York, while, on the other 
hand, the newspapers had printed many articles in its 

1 It is interesting to note that there was advertised at the Opera House, on 
July 19, a "Concert", consisting of "A Serious and Moral Lecture on the Vice of 
Gaming." 

On July 25, the Opera House announced a " Concert, between the parts of which 
will be introduced a Moral and instructive Tale called Filial Piety, exemplified in the 
history of the Prince of Denmark ... to which will be added a Comic Opera called 
Lethe or Aesop in the Shades. Doors open at 7, curtain drawn up precisely at 8. 
Ladies and Gentlemen are requested to send their servant in time to keep their 
boxes." 

2 Quoted in Pennsylvania Packet, June 26 ; Pennsylvania Gazette, June 27 ; Inde- 
pendent Chronicle, July 4 ; Massachusetts Centinel, July 7 ; Salem Mercury, July 10, 
1787. 



340 COMPLETION OF THE PLAN 

favor. 1 As early as May 24, a letter addressed "to the 
(Political) Free-thinkers of America", stated that re- 
forms in the old Confederation were clearly necessary ; 
that the object to be obtained was not a Government 
necessarily perfect for all time, but "a Government 
equal to the exigencies of the country and made capable 
of anticipating the important changes which await it" ; 
and that the Convention of States now sitting was 
4 "created from fear and suffering." On May 26, it 
was stated that "a strong and efficient Executive 
power must be somewhere established." On June 18, 
a correspondent in several of the papers said : 

"It is remarkable that those very men who have not 
only ransacked their brain for arguments, but every politi- 
cal publication for authorities, to support their favorite 
measure of withholding the necessary powers from the 
Union should all at once be fairly silenced. We see or 
read no more of their elaborate pieces, with long and un- 
interesting quotations from musty authors. Are they 
conscious of their errors ? Or does the wisdom and dig- 
nity of that respectable group of characters now sitting in 
Convention at Philadelphia for the express purpose of 
strengthening the Confederacy strike them with awe, or 
make them apprehensive that their sinister policy will be 
crushed ?" 

Another correspondent wrote (June 6) that : 2 

"The principal difficulty in the way of necessary altera- 
tions in our Government will arise from the officers of Gov- 
ernment. Their interest, it is imagined, will be affected 
by the alterations. . . . But it is to be hoped the people 
will neither be influenced by such men nor their connec- 
tions in the adoption of a Foederal Government." 

1 See New York Daily Advertiser, May 24 ; New York Independent Journal, May 
2C. The New York papers contained many plans for the new Government ; see 
" West Chester Farmer" and "Sketch of a Federal Government" in New York Daily 
Advertiser, June 8, 11, 1787. 

2 Quoted in Pennsylvania Journal, June 30, 1787. 



SATURDAY, JULY 21, 1787 341 

After July 10, however, when Yates and Lansing left 
the Convention and returned to New York, with a 
report to the Governor that it was violating its in- 
structions and planning a despotic Government, 
Clinton was encouraged to renew the opposition which 
he had raised at the time when the New York delegates 
were originally named. Widespread rumors of projects 
of the Convention hostile to the liberties of the people 
began to be spread. Sarcastic and antagonistic articles 
appeared, of which the following is a sample : 1 

"The Convention should respect the limits of every 
individual ; and it is my advice that they would prevent 
any individual from issuing a paper medium, by an ex- 
press clause in the new Government which is to combine 
all the jarring interests of the States without an army or 
resources. If our notables, or notable attornies and poli- 
ticians, who are called the wisdom of the western world, 
and who have convened for the purpose of mending a rotten 
silk stocking or cementing a rope of sand, would establish 
a tribunal of inquiry into the speculations of financiers 
and contractors, and force them to disgorge the contents 
of their voracious maws, they would give the world better 
specimens of their political wisdom, than exhibiting to 
Europe a laughable realization of Cervantes' fiction of 
Governor Sancho, by forming speculative systems which 
look beautiful and perfect in the recess of the State House, 
but vanish when exposed to the touch of the people. They 
might preserve for one year more that dignity which is al- 
ways in the mouths of those political upstarts who have no 
real claim to publick or private respect." 

To counteract these influences, there now appeared 
in the New York Daily Advertiser, a long letter in the 
nature of a personal attack on Clinton and a defence of 
the need of a Convention. It stated that : 

1 Quoted in Massachusetts Centinel, July 21, 1787, from a New York paper of 
July 6. 



342 COMPLETION OF THE PLAN 

"It is currently reported and believed that his Excel- 
lency, Governor Clinton, had, in public company, without 
reserve, reprobated the appointment of the Convention 
and predicted a mischievous issue of that measure. His 
observations are said to be to the effect : that the appoint- 
ment of a Convention is calculated to impress the people 
with an idea of evils which do not exist ; therefore, that 
to all probability the result of their deliberations, what- 
ever it might be, would only serve to throw the community 
into confusion." 

And it criticised Clinton's attitude as "unwarrant- 
able and culpable", arousing grave doubts as to whether 
he was working for the public good, or was seeking 
dangerously after personal power. 1 This letter, though 
published anonymously, was admitted, two months 
later, to be written by Alexander Hamilton. It was 
followed in the same paper, July 26, by a letter from 
"An Admirer of Anti-Federal Men", urging the 
people to have "confidence in those illustrious charac- 
ters" convened at Philadelphia, and saying that "the 
conduct of several leading men among us has of late 
given the friends of liberty much uneasiness." From 
this time on, the opposition to the Constitution was 
stronger in New York than in any other State. 

SUNDAY, JULY 22, 1787 

Washington noted : 

"Left town by 5 o'clock A. M. Breakfasted at Genl. 
Mifflin's. Rode up with him and others to the Spring 
Mills and returned to Genl. Mifflin's to Dinner, after which 
proceeded to the City." 

General Mifflin's country home was east of the Falls 
of the Schuylkill, and the object of the trip was to 

1 See Pennsylvania Packet, Aug. 8; Massachusetts Centinel, Aug. 11, 1787, and 
other papers ; New York Journal, Sept. 6 ; New York Daily Advertiser, Sept. 10, 
15, 1787. See The Ratification of Federal Constitution by the State of New York (1921) 
by Clarence E. Vernier. For an attack on Clinton by the Federalists, see New York 
Daily Advertiser, June 23, 1787. 



SUNDAY, JULY 22, 1787 343 

inspect the vineyards and apiary of Peter Legaux. 
The latter in his manuscript diary wrote ; l 

"This day Gen. Washington, Gen. Mifflin and four 
others of the Convention did us the honor of paying us a 
visit in order to see our vineyards and bee houses. In this 
they found a great delight, asked a number of questions, 
and testified their highest approbation with my manner of 
managing bees, which gave me a great deal of pleasure." 

Franklin wrote this day to Captain John Paul Jones, 
who was then in Europe, that "the Convention goes on 
well and that there is hope of great good to result from 
their counsels/' 

Dr. Hugh Williamson wrote to James Iredell : 

"After much labor the Convention have nearly agreed 
on the principles and outlines of a system which we hope 
may fairly be called an amendment of the Federal Govern- 
ment. This system we expect will, in three or four days, 
be referred to a small committee to be properly dressed ; 
and if we like it, when clothed and equipped, we shall sub- 
mit it to Congress, and advise them to recommend it to the 
hospitable reception of the States. I expect that some 
time in September we may put the last hand to this work." 

Richard Henry Lee, a Member of Congress from 
Virginia (and later one of the leaders in opposing the 
adoption of the Constitution), wrote from New York 
to Francis Lightfoot Lee that he had spent the week 
before July 10 in Philadelphia, where "the Federal 
Convention is proceeding slowly, but I hope surely, in 
a practical improvement of our Federal Constitution " : 

"Experience seems to have proved that our Govern- 
ments have not tone enough for the unruly passions of 
men, and so far as I can judge, the general wish is for a 
balanced Government, where the powers shall be placed 
independently, as in England ; and of duration somewhat 
longer than the present. ... I suppose it will be recom- 

1 Washington After the Revolution (1898), by William Spohn Baker. 



344 COMPLETION OF THE PLAN 

mended to the States to call Conventions for the special 
purpose of approving the new system, that it may rest on 
the broad base of the people's choice, rather than on the 
more feeble opinion of the ordinary Legislatures." 

MONDAY, JULY 23, 1787 

IN CONVENTION 

On this day, the twelfth State appeared on the floor 
of the Convention, when two months after its 
assembly John Langdon and Nicholas Gilman of 
New Hampshire took their seats. Of their arrival, 
Gilman wrote to Joseph Gilman (July 31) that "not- 
withstanding we are so late in the day, it is a circum- 
stance in this critical state of affairs that seems highly 
pleasing to the Convention." 1 Had they appeared 
earlier, during the great contest which led up to the 
Compromise of July 16, the whole course of history 
might have been changed. Although the leaders of 
the small States' party evidently expected New Hamp- 
shire to line up with them, it is probable, in view of the 
extremely National sentiments which Langdon and 
Gilman expressed later, that they would have allied 
themselves with the Virginia side, in which case the 
Compromise might not have succeeded. Their absence, 
therefore, was probably a fortunate occurrence. 

Per Capita Voting 

Up to this point, the Convention, in debating the 
State equality of votes in the Senate, had apparently 
contemplated that the delegates of each State should 

1 Freemen? s Journal, July 23, 1787, published the following despatch from Hart- 
ford, Connecticut, of July 16 : "Saturday last passed through this city on their way 
to Philadelphia, the honorable John Langdon, Esq., late president of New Hamp- 
shire, and Colonel Gardner, delegate from that State to the Federal Convention. 
'The prayers of the good (says a New Hampshire paper) will follow this disinterested 
patriot (Mr. Langdon) who, when the public treasury was incapable of furnishing 
supplies, generously offered to bear the expenses of himself and colleague on this 
important mission. ' " 



MONDAY, JULY 23, 1787 345 

cast their votes as a unit the vote thus being taken 
by States, as in the Congress of the Confederation. 
The first suggestion to the contrary was made by 
Gerry. On July 14, he proposed that "the States 
should vote per capita, which, he said, would prevent 
the delays and inconveniences that had been ex- 
perienced in Congress and would give a National 
aspect and spirit to the management of business." 
Though the delegates from the smaller States 
undoubtedly believed that the Senators from a State 
would always vote alike, Gerry's suggestion was a 
radical alteration of the equality system ; for it made 
it possible at least that, by division of its Senatorial 
vote, a State might lose its position of equality. In 
spite of this fact, Sherman said that he had no objection 
to the Senators voting per capita. Gerry's proposal 
was not acted on until after the Great Compromise had 
been settled. Then, on July 23, G. Morris and King 
(neither of whom had favored equality of votes) moved 
that the representation in the Senate "consist of three 
members from each State, who shall vote per capita." 
Williamson concurred. Ellsworth said that he "had 
always approved of voting in that mode." With far 
more consistency and insight, Luther Martin, perceiving 
how this would derogate from the equality theory, 
announced his opposition to per capita voting, "as de- 
parting from the idea of the States being represented" 
in the Senate. His colleague, Carroll, said, wisely, 
that though he "was not struck with any particular 
objection against the mode, he did not wish so hastily 
to make so material an innovation." No further 
consideration was given to this very vital change. The 
discussion then turned on the number of Senators for 
each State. Gorham preferred two rather than three, 
as "a small number was most convenient for deciding 
on peace and war which he expected would be vested " 



346 COMPLETION OF THE PLAN 

in the Senate. Mason also thought that three Senators 
would make the Senate too numerous. Williamson 
argued that "if the number be too great, the distant 
States will not be on an equal footing with the nearer 
States as the latter can more easily send and support 
their ablest citizen." 

The Convention voted (with Maryland alone dissent- 
ing) that the Senate should consist of two members from 
each State who should vote per capita. In this manner, 
and with very slight debate, this important question 
was settled. 

On August 9, a proposal by Randolph, Mason, and 
Strong was made to postpone action on the last sentence 
until it should be seen whether the Convention was 
going to adhere to that part of the Great Compromise 
which gave to the House the origination of money bills 
Randolph stating that unless the whole Compromise 
was accepted, he should propose to vary the repre- 
sentation in the Senate. The motion to postpone was 
defeated, and the plan of one vote for each Senator was 
accepted by the Convention. 

Mode of Ratification of the Constitution 

Having settled most of the general outlines of the 
new Government (except the method of the election of 
President), the Convention took up this day the 
question : How shall the new Constitution be adopted ? 

Randolph's Resolutions of May 29 provided that : 

"The amendments which shall be offered to the Con- 
federation by the Convention ought at a proper time or 
times, after the approbation of Congress, to be submitted 
to an assembly or assemblies of Representatives recom- 
mended by the several Legislatures ; to be expressly chosen 
by the people, to consider and decide thereon." 

This proposal at once raised the fundamental ques- 
tion whether the new Constitution was to come from 



MONDAY, JULY 23, 1787 347 

the people or from the States ; whether it was to be 
adopted by vote of the people either directly or through 
their representatives assembled in State Conventions, 
or whether it was to be adopted by the States acting 
through their Legislatures. It must be remembered 
that of the States which adopted Constitutions between 
1776 and 1784, only two New Hampshire and 
Massachusetts had framed their Constitutions by 
Conventions especially chosen for that purpose and 
distinct from the Legislative body, and only in these 
two States were the Constitutions so framed submitted 
to the people themselves for adoption. In Pennsyl- 
vania, New Jersey, Delaware, Maryland, North 
Carolina, and Georgia, the Constitutions were framed 
and adopted by bodies specially chosen for that purpose 
but which also acted as the Legislatures. In Virginia, 
South Carolina, and New York, the Legislatures framed 
and enacted the Constitutions, without special 
authority from the people. In no one of the States, 
other than New Hampshire and Massachusetts, did the 
people themselves act on the Constitution so adopted. 1 
The Articles of Confederation themselves had been 
ratified by the people in a few of the Eastern States, 
but in the Southern States and elsewhere, they had 
been ratified by the Legislatures. 2 

The line of cleavage between those delegates who 
wanted the new Government to rest on a popular basis 
and those who wished it to rest on the State Legislatures 
had become apparent, on the very first day (June 5) 
when the Committee of the Whole considered this 
particular Randolph Resolution. 3 Madison stated that 

1 The First State Constitutional Conventions 1776-1783, by W. F. Dodd, Amer. 
Pol. Sci. Rev. (1908), II; Constitutional History of the American People (1898), by 
Francis N. Thorpe, I, Chap. 4 ; Constitutional Conventions (4th ed. 1887), by John 
A. Jameson. 

2 See statements by Gerry and King, June 5 ; Ellsworth, July 23. 

3 It is interesting to note that this Resolution, when it was debated, was de- 
scribed as one "for recommending Conventions under appointment of the people to 



348 COMPLETION OF THE PLAN 

"he thought it indispensable that the new Constitution 
should be ratified in the most unexceptionable form and 
by the supreme authority of the people themselves." 
Wilson took the same view. Rufus King concurred, 
but on the ground that it would be easier to secure 
adoption by Conventions than by Legislatures, since 
the latter "being to lose power will be most likely to 
raise objections." On the other hand, Sherman of 
Connecticut, a sturdy upholder of State Sovereignty, 
wished for ratification by the State Legislatures ; and 
Gerry of Massachusetts (who later refused to sign the 
Constitution) was afraid of referring the new system 
to the people, saying, as to the Eastern States, "the 
people in that quarter have at this time the wildest ideas 
of Government in the world." Ellsworth of Con- 
necticut also stated (June 20) that "he did not like these 
Conventions. They were better fitted to pull down 
than to build up Constitutions." 1 Luther Martin of 
Maryland, another States' Rights adherent, also op- 
posed Conventions in the States (June 20). When the 
Convention took up this subject, on this July 23, 
Ellsworth at once moved that the new plan be referred 
to the State Legislatures for ratification, arguing that 
the Legislatures were more likely to ratify than the 
people, since "the prevailing wish of the people in the 
Eastern States is to get rid of the public debt", whereas 
"the idea of strengthening the National Government 
carries with it that of strengthening the public debt." 
He stated further that : "A new set of ideas seemed to 
have crept in since the Articles of Confederation were 

ratify the new Constitution." Somewhere between May 29 and June 5, the phrase 
"the amendments which shall be offered to the Confederation by the Convention" 
had become the phrase "the new Constitution", a very significant change. 

1 One reason why the Connecticut delegates disliked ratification by Conventions 
was that, in that State, a Convention had assembled at Middletown in December, 
1788, which had violently opposed the votes of Congress as to commutation of pay 
for officers of the Continental army and other subjects, and the action of this 
Convention had caused considerable disturbance in other States. 



MONDAY, JULY 23, 1787 349 

established. Conventions of the people or with power 
derived expressly from the people were not then thought 
of. The Legislatures were considered as competent." 
Gerry also argued that: "Great confusion would 
result from a recurrence to the people. They would 
never agree on anything." Ellsworth's "new set of 
ideas", however, could hardly be said to have been 
new ; for they had been expressed in the Virginia Bill 
of Rights of June 12, 1776, as drafted by George Mason : 

"That all power is vested in, and consequently derived 
from the people, that magistrates are their trustees and 
servants and at all times amenable to them. That Gov- 
ernment is, or ought to be instituted for the common bene- 
fit, protection and security of the people, nation or com- 
munity . . . and that when any Government shall be 
found inadequate or contrary to these purposes, a majority 
of the community hath an indubitable, inalienable and 
indefeasible right to reform, alter, or abolish it, in such 
manner as shall be judged most conclusive to the public 
weal." 

And they had been reechoed by Jefferson in the 
Declaration of Independence. Powerful arguments 
in behalf of action by the people were made by Mason, 
Randolph, and Madison of Virginia, King and Gorhain 
of Massachusetts, Wilson of North Carolina, and G. 
Morris of Pennsylvania. Mason urged that resort 
must be had "to the people with whom all power 
remains that has not been given up in the Constitutions 
derived from them. It was of great moment that this 
doctrine should be cherished as the basis of free Govern- 
ment." In these words, he set forth the fundamental 
principle of the Constitution. Randolph, Williamson, 
King, and Gorham argued that members of the Legis- 
latures, being about to lose power, would not discuss the 
subject candidly ; and it was pointed out that in some 
States "many of the ablest men are excluded from the 



350 COMPLETION OF THE PLAN 

Legislatures but may be elected into a Convention. 
Among these may be ranked many of the clergy, who 
are generally friends to good Government." Madison's 
argument was of extraordinary interest, in view of its 
clear recognition of the power of the Judiciary to enforce 
a Constitution. He considered that the State Legis- 
latures had no power to consent to the proposed 
changes; for these changes "would make essential 
inroads on the State Constitutions, and it would be a 
novel and dangerous doctrine that a Legislature could 
change the Constitution under which it held its ex- 
istence." He pointed out that the true difference 
between a league or treaty and a Constitution was, 
that the one system was founded on the Legislatures 
only, and the other on the people ; that in point of 
political operation there were important distinctions 
in favor of the latter: "A law violating a treaty 
ratified by a pre-existing law might be respected by the 
Judges, as a law, though an unwise and perfidious one. 
A law violative of a Constitution established by the 
people themselves would be considered by the Judges 
as null and void." The argument made by G. Morris 
was singularly bold. One of the great objections raised 
to the new plan of Government had been that the 
delegates to this Convention had only been empowered 
by their States to amend the Articles of Confederation, 
and not to frame a new Constitution. Morris now 
openly admitted that "this Convention is unknown 
to the Confederation" and that Ellsworth "erroneously 
supposes that we are proceeding on the basis of the 
Confederation." 

Ellsworth's motion was voted down only Con- 
necticut, Delaware, and Maryland supporting it ; and 
Randolph's original Resolution was then adopted, with 
only one dissenting vote (that of Delaware). It is 
interesting to note how completely Ellsworth changed 



MONDAY, JULY 23, 1787 351 

his view on the subject of submission of the Con- 
stitution to the people; for in November, 1787, he 
wrote as follows : 1 

"It proves the honesty and patriotism of the gentlemen 
who composed the General Convention, that they chose 
to submit their system to the people rather than the Legis- 
latures, whose decisions are often influenced by men in the 
higher departments of government, who have provided 
well for themselves and dread any change lest they should 
be injured by its operation. I would not wish to exclude 
from a State Convention those gentlemen who compose 
the higher branches of the Assemblies in the several States, 
but choose to see them stand on an even floor with their 
brethren, where the artifice of a small number cannot nega- 
tive a vast majority of the people. This danger was fore- 
seen by the Federal Convention, and they have wisely 
avoided it by appealing directly to the people." 

Although during the whole debate it was not 
advanced by any delegate, there was one argument 
which must have been present to the minds of all an 
argument based on facts which should be given most 
careful consideration because of its bearing on the 
contention that the Constitution was framed in favor 
of property interests solely. When the Convention 
voted to refer the Constitution to Conventions of the 
people for adoption, rather than to the State Legis- 
latures, it voted directly in opposition to the propertied 
interests. For, as will be shown in detail infra, practi- 
cally all the State Constitutions, at that time, required 
voters for members of the State Legislature to possess 
a certain amount of property (some States requiring 
possession of more property to vote for State Senator 
than for Representative) ; and they required the 
members of the Legislature to have property 

1 Essay* on the Constitution, by Paul Leicester Ford, letter of "Landholder" 
(Oliver Ellsworth) in Connecticut Courant, Nov. 5, 1787. 



COMPLETION OF THE PLAN 

qualifications (in some States larger for Senators than 
for Representatives). On the other hand, in all the 
States, whoever was qualified to vote for State Rep- 
resentative could vote for members of a Convention ; 
and in Massachusetts and some other States, every 
freeman of a town (irrespective of possession of 
property) could vote for a member of a Convention. 
Moreover, members of Conventions themselves were 
not obliged to possess any property qualifications. 
Hence, the vote by which the Federal Convention 
referred ratification to the people was a democratic 
vote, and not in the interests of property. 1 

OUT OF CONVENTION 

Joseph Jones wrote from Virginia, this day, to 
Madison : 

"Are we likely to have a happy issue of your meeting 
or will it pass over without any effect? Finding you still 
continue together, our hopes are not lost ; my fears, how- 
ever, I must confess, are rather increased than diminished 
by the protraction of your session, taking it for granted 
many and great difficulties have been encountered, as there 
were many and great to remove before a good system could 
be established." 

1 When the C Constitution was actually submitted to the State Conventions for 
ratification in 1787-1788, the State Legislatures voted in Massachusetts, Penn- 
sylvania, Delaware, Maryland, North Carolina, South Carolina, and Georgia that 
persons qualified to vote for members of the lower House of the Legislature might 
vote for members of the Convention ; in New York, the straight principle of man- 
hood suffrage was adopted in the election of delegates to the ratifying Convention ; 
in Connecticut, those "qualified by law to vote in the town meetings" could vote 
for members of the Convention ; in New Hampshire, the duly qualified voters for 
members of the lower House, together with certain additional classes. See An 
Economic Interpretation of the Constitution (1913), by Charles A. Beard, 240-242. 

In Virginia, the Assembly voted, Oct. 25, 1787: "Resolved that every citizen 
being a freeholder in this Commonwealth be eligible to a seat in the Convention, 
and that the people, therefore, be not restrained in their choice of Delegates by any 
of those legal or constitutional restrictions which confine them in their choice of 
Members of the Legislature." 



WEDNESDAY, JULY 25, 1787 353 

TUESDAY, JULY 24, 1787 
IN CONVENTION 

Though the delegates were still struggling with the 
question of the mode of election of the President, yet, as 
all the other subjects comprised in Randolph's original 
Resolutions of May 29 had now been acted upon, the 
Convention, this day, appointed a Committee, consist- 
ing of John Rutledge of South Carolina, Edmund 
Randolph of Virginia, Nathaniel Gorham of Mas- 
sachusetts, Oliver Ellsworth of Connecticut, and James 
Wilson of Pennsylvania a well-balanced group of two 
representatives of the Southern, two of the Northern, 
and one of the Middle States (known later as the 
Committee of Detail) "to report a Constitution 
conformable to the Resolutions passed by the Con- 
vention." To this Committee, there were referred 
all the proposals thus far adopted, as well as the plans 
for a government submitted by Charles Pinckney on 
May 9, and by William Paterson on June 15. 

OUT OF CONVENTION 
John Jay wrote, this day, to Jefferson in Paris l that : 

"The Convention is sitting, but their proceedings are 
secret. Our Indian affairs in the West still give us 
uneasiness, and so I fear they will continue to do, for 
reasons you will not be at a loss to conjecture. Our 
affairs in general will admit of much melioration, and 
they will afford the Convention ample field for the 
display of their patriotism and talents." 

WEDNESDAY, JULY 25, 1787 

IN CONVENTION 

The delegates continued to struggle with the question 
of the Executive. 

1 Diplomatic Correspondence of the United States, II, 43. 



354 COMPLETION OF THE PLAN 

On this day, the Secrecy Rule was so rigidly applied 
that a motion that the members of the Convention 
might take copies of the Resolutions which had been 
agreed to was defeated ; although it was voted that 
copies of the proceedings should be furnished to the 
Committee of Detail. So extreme an application of 
the Rule was severely commented on, later, by Luther 
Martin, in his Report to the Maryland Legislature, in 
which he stated : l 

"I moved for liberty to be given to the different mem- 
bers to take correct copies of the propositions to which the 
Convention had then agreed, in order that during the re- 
cess of the Convention, we might have an opportunity of 
considering them, and if it should be thought that any 
alterations or amendments were necessary, that we might 
be prepared, against the Convention met, to bring them 
forward for discussion. But the same spirit which caused 
our doors to be shut, our proceedings to be kept secret, 
our Journals to be locked up, and every avenue, as far as 
possible, to be shut to public information, prevailed also 
in this case, and the proposal, so reasonable and necessary, 
was rejected by a majority of the Convention; thereby 
precluding even the members themselves from the neces- 
sary means of information and deliberation on the impor- 
tant business in which they were engaged." 

OUT OF CONVENTION 

John Jay wrote from New York, this day, to General 
Washington : 

"Permit me to hint whether it would not be wise and 
reasonable to provide a strong check to the admission of 
foreigners into the administration of our National Govern- 
ment, and to declare expressly that the command in chief 

1 Martin wrote in Maryland Journal, March 7, 1788, that : "We were permitted 
to read them (the Journals), although we were not always permitted to copy them. 
. . . The business of the Committees were not of a secret nature, nor were they 
conducted in a secret manner, I mean as to Members of the Convention. ... I 
am satisfied that there was no Committee while I was there of whoso proceedings 
I was not informed.'* 



WEDNESDAY, JULY 25, 1787 355 

of the American Army shall not be given to, nor devolve 
on, any but a natural born citizen." 

The necessity of forming a strong Government 
which might suppress the serious combination of the 
Indian tribes (fostered, it was hinted, by Great Britain), 
and the difficulty of dealing with such a matter by a 
Government having no Executive, were impressed upon 
Madison, in a letter written by Edward Carrington 
from Congress in New York : 

"We are trying to do something with our Western Ter- 
ritory to make it useful to the purposes for which the United 
States was vested with it. You have seen in the papers 
the scheme for the temporary as well as perpetual govern- 
ment of it. A 'practical measure for the sale of it, or rather 
by means of it to redeem the domestic debt, remains still 
to be agreed upon, and I fear the difficulties which have 
always stood in the way of this great object are not yet to 
be surmounted. Col. Lee joins Grayson and myself with 
great zeal, but what will be the issue of our efforts, I know 
not. Indian affairs wear an hostile aspect, and money 
must in all probability be expended on treaties with them. 
A general Confederacy is formed of all the nations and 
tribes, from the Six Nations inclusive to the Mississippi, 
under the immediate influence of Brandt a general Coun- 
cil has been held, in form, near Detroit as long ago as last 
December, in which have been considered as grievances, 
our surveying over the Ohio, the cessions being made by 
only parts of the tribes having rights in the ceded tracts. 
Of these injuries or grievances, they have sent an united 
representation to Congress requesting that a General Treaty 
may be held perhaps this business may be directed by 
an authority higher than Brandt, and should our titles 
to the land be compleat, it will still be better to spend a 
little money in Treating rather than expend a great deal 
in War, which, from the generality of the confederacy, 
is seriously to be apprehended. This subject is now under 
consideration. As to the hostilities upon Kentucky the 



356 COMPLETION OF THE PLAN 

Superintendent of Indian Affairs or, in case of his inability 
to go, Col. Josiah Harmon is ordered to proceed imme- 
diately to some convenient place for holding a treaty with 
the hostile tribes and by that means restore peace between 
them and our people if practicable. In the meantime, Col. 
Harmon is so to post the Federal troops as to provide the 
best defence for the country and to call for such aids of 
militia as he shall find necessary. Should the treaty not 
succeed, report is to be made to Congress for their further 
orders as to offensive operations. The state of the general 
Confederacy requires some care in the direction of this 
business." 

And the necessity of an Executive was also com- 
mented upon in a letter from Baltimore of July 17, 
published in the Gazette : 

"We are all anxious to hear what the Foederal Con- 
vention are doing, and from their silence and secrecy are 
in hopes something will be done of future advantage to 
America. I pray not only that a reform of our Confed- 
eration may take place, but the defects of our Statical 
Government pointed out and amendments recommended, 
so that we may be as much in unison with each other as is 
compatible with our local situation and different habits of 
thinking. ... I am in hopes that Mr. Adams' defence 
(as it is generally termed) but what I call his condemnation 
of our Constitutions will have a good effect in impressing 
the necessity of supplemental checks on our Legislatures, 
and of cloathing an Executive with additional power and 
respectability, so as to be adequate to every exigency." 

The Herald and the Journal sanguinely announced, 
this day, that the Convention would only last a month 
longer : 

"We are informed that the Federal Convention will 
continue their deliberations about a month longer; and 
that there will then be presented to the public a scheme 
of Continental Government adapted to the circumstances 



THURSDAY, JULY 26, 1787 357 

and habits of the people without regard to the fine spun 
systems of elementary writers." 

THURSDAY, JULY 26, 1787 

IN CONVENTION 
Election of Executive 

On this day, after a debate occupying the better part 
of eight days (June 1, 2, 9, July 19, 20, 24, 25, 26), the 
delegates finally arrived at an agreement on the subject 
of the manner of election and term of office of the 
Executive that he should be chosen by the National 
Legislature, for a term of seven years, and to be in- 
eligible to re-election. (They had already agreed that 
he was to be subject to impeachment and to have 
power to appoint all officers except Judges, and to 
carry into execution the National laws.) In arriving 
at this conclusion, however, they had shown every 
variety of vacillation, having voted, in turn, both for 
and against many other proposals. The problems 
were : how to make the Executive independent of the 
Legislature, and yet not too independent how to 
give him effective power and yet keep him responsible 
to the people? The sinuous and perplexing course of 
their proceedings was as follows. On June 1 and 2, 
the method of election proposed by Randolph's Reso- 
lutions of May 29, namely, by the National Legislature, 
had been adopted, only Pennsylvania and Maryland 
being opposed. James Wilson of Pennsylvania, how- 
ever, an ardent advocate of the Constitution, had 
stated that while he was "apprehensive that it might 
appear chimerical", he was, "in theory at least, for an 
election by the people." The remark was significant; 
for at that time popular election of State Executives 
prevailed under the written Constitutions of only three 
States New Hampshire, Massachusetts, and New 



358 COMPLETION OF THE PLAN 

York. Accordingly, he proposed choice of Executive 
by electors chosen by the people. Elbridge Gerry of 
Massachusetts was also opposed to Legislative election 
as promotive of constant intrigues for Executive 
favor; but he thought the "community was not yet 
ripe for stripping the States of their powers " and vesting 
them in the people ; moreover, he thought the people 
were "too little informed of personal characters" to 
choose electors. Wilson's proposal was defeated. The 
term for the Executive was fixed at seven years, and he 
was made ineligible for re-election. A week later, 
Gerry moved that the National Executive be elected 
by the Executives of the States, urging again that the 
method already adopted "would give birth to both 
corruption between the Executive and Legislature 
previous to election and to partiality in the Executive 
afterwards to the friends who promoted him." After 
an earnest speech in opposition by Randolph, the 
motion had been defeated. On July 17, the subject 
was again heatedly debated. The most earnest ad- 
vocates of the new Constitution were equally earnest 
for election by the people, their view being, as Wilson 
said, that otherwise the Executive "would be too 
dependent to stand as the mediator between the 
intrigues and sinister views of the Representatives 
and the general liberties and interests of the people." 
George Mason, Charles Pinckney, and Hugh William- 
son, on the other hand, urged that "the extent of the 
country renders it impossible that the people can have 
the requisite capacity to judge of the respective preten- 
sions of the candidates" and that the people would be 
"led by a few active and designing men." These views 
prevailed, and a motion for election by the people 
secured the vote of only one State (Pennsylvania). A 
motion by Luther Martin for choice by electors ap- 
pointed by the State Legislatures was also defeated. 



THURSDAY, JULY 26, 1787 359 

The Convention then, however, proceeded to reverse 
its previous action as to ineligibility to re-election. 
Houston, Sherman, and G. Morris now urged that this 
provision "tended to destroy the great motive to good 
behaviour, the hope of being rewarded by a reappoint- 
ment. It was saying to him, make hay while the sun 
shines"; and the delegates now voted that the 
Executive should be re-eligible. This brought forth 
a motion by James McClurg that the Executive be 
given a term during good behaviour, since a seven- 
year term with re-eligibility would make him depend- 
ent forever on the Legislature. Mason considered that 
an Executive during good behaviour "is a softer name 
only for an Executive for life and that the next would 
be an easy step to an hereditary monarchy." Madison 
said that he could not be "thought to favor any step 
towards monarchy ; the real object with him was to 
prevent its introduction." He pointed out that the 
danger which was turning the people towards a revo- 
lution against Republican government was the insta- 
bility and encroachment of the Legislatures, and that : 
"Experience had proved a tendency in our Government 
to throw all power into the Legislative vortex. The 
Executives of the States are in general little more than 
cyphers, the Legislatures omnipotent." Hence, it was 
absolutely necessary to adopt some expedient, either 
by method of election or length of term, which would 
make the Executive and the Legislative independent 
of each other. G. Morris also said that he was "as 
little a friend to monarchy as any gentleman", but that 
"the way to keep out a monarchical Government was 
to establish such a Republican Government as would 
make the people happy and prevent a desire of change." 
McClurg's motion, however, was defeated ; and so was 
a motion to strike out the seven-year term already 
voted. On July 19, Luther Martin moved to reinstate 



360 COMPLETION OF THE PLAN 

ineligibility. Randolph concurred, thinking the 
Executive should "not be left under a temptation 
to court a reappointment. If he should be reappoint- 
able by the Legislature, he will be no check on it/' 
G. Morris stated that the Executive "ought to be so 
constituted as to be the great protector of the mass of 
the people"; but if he was to be both appointed by 
and impeachable by the Legislature, "it will hold him 
in such dependence that he will be no check on the 
Legislature, will not be a firm guardian of the people 
and of the public interest. He will be the tool of a 
faction." He accordingly favored either not making 
the Executive impeachable, or else allowing his election 
by the people. King of Massachusetts was opposed 
to the ineligibility and "much disposed to think that 
in such cases the people at large would chuse wisely." 
Paterson, Madison, and Gerry were inclined to choice 
of the Executive by electors (Gerry favoring electors 
appointed by the State Executives), Madison still 
retained his belief, however, that choice by "the people 
at large" was the fittest. Wilson of Pennsylvania 
stated that "it seems to be the unanimous sense that 
the Executive should not be appointed by the Legis- 
lature unless he be rendered ineligible a second time; 
he perceived with pleasure that the idea was gaining 
ground of an election mediately or immediately by the 
people." Ellsworth of Connecticut now moved for 
choice by electors appointed by the State Legislatures, 
and this was adopted. 1 At the same time, it was 
voted that the term be changed from seven years to six ; 
and Luther Martin's attempt to reimpose ineligibility 
to re-election was defeated. 2 On July 20, the Con- 

1 This same motion made by Luther Martin, on July 17, had then been defeated. 
A similar motion again made on July 25, by Butler, was defeated. 

2 Notice the reasons given a shorter term. Ellsworth said : " If the elections 
be too frequent, the Executive will not be firm enough. There must be duties 
which will make him unpopular for the moment. There will be antis as well as ins. 
His administration, therefore, will be attacked and misrepresented." 



THURSDAY, JULY 26, 1787 361 

vention adopted the ratio for electors suggested by 
Gerry, which gave Pennsylvania, Virginia, and Mas- 
sachusetts three each; Connecticut, New York, New 
Jersey, Maryland, North Carolina, and South Carolina 
two each ; and New Hampshire, Rhode Island, and 
Delaware, one each. Three days later, on July 24, the 
Convention reversed its whole action on this subject ; 
and on motion of Houston of New Jersey, supported by 
Williamson of North Carolina and Strong of Massa- 
chusetts, again voted for choice of Executive by the 
National Legislature. This reversal necessitated re- 
consideration of the vote as to re-eligibility and as to 
term of office. Various suggestions were now made 
for an eight, eleven, fifteen, and twenty year term, but 
no votes were taken. "The difficulties and perplex- 
ities" which accompanied choice by the Legislature 
were now again impressed upon the Convention by 
Wilson, who said that he "remained unshaken" that 
"we ought to resort to the people", but he suggested 
a compromise that election be made by fifteen of the 
Legislature drawn by lot. G. Morris stated that "of 
all possible modes of appointment that by the Legis- 
lature is the worst. If the Legislature is to appoint 
and to impeach or to influence the impeachment, the 
Executive will be the mere creature of it." He thought 
that Wilson's suggestion "deserved consideration. It 
would be better that chance should decide, than 
intrigue." King and Gerry thought we ought to be 
governed "by reason and not by chance", and Gerry 
urged that, as "we seem to be entirely at a loss on this 
head", the whole subject be referred to the Committee 
of Detail. 

On July 25, various new proposals were made. 
Ellsworth suggested that only in case of a candidacy 
for re-election should the choice be by electors. Gerry 
suggested choice by the State Executives with the 



362 COMPLETION OF THE PLAN 

concurrence of their Councils. Pinckney suggested 
that choice by the Legislature be qualified by the 
proviso that no person be eligible for more than six 
years in any twelve. Butler suggested choice by 
electors chosen by the State Legislatures. All these 
proposals were defeated. G. Morris and Madison 
reiterated insistently the reasons in favor of popular 
election first, to avoid intrigues with Legislative 
factions by candidates for appointment; second, to 
avoid the temptation to foreign powers to influence the 
National Legislature, it being "an object of great 
moment with such powers to have at the head of our 
Government a man attached to their respective politics 
and interests." Williamson of North Carolina and 
Butler of South Carolina agreed that "the two great 
evils to be avoided are cabal at home and influence 
from abroad." Mason, though agreeing that the 
danger of foreign influence was the most serious ob- 
jection that had been urged, nevertheless favored 
appointment by the Legislature. Ellsworth concurred, 
fearing lest election by the people would always result 
in choice of the Executive by the largest States. Gerry 
thought popular election to be "radically vicious." 
"The ignorance of the people," he said, "would put 
it in the power of some one set of men dispersed through 
the Union and acting in concert to delude them in any 
appointment"; and he feared that in this way the 
Society of the Cincinnati might control elections (in 
which opinion Mason concurred, though both professed 
great respect for the members of that military Society). 
Gouverneur Morris now renewed the objection which 
he had continually raised to the attempts made by 
Gerry and L. Martin to reinstate a provision against 
re-election. Ellsworth also (July 24) thought the 
Executive should be re-elected " if his conduct proved 
him worthy of it. And he will be more likely to render 



THURSDAY, JULY 26, 1787 363 

himself worthy of it if he be rewardable with it." The 
theory of rotation in office, however, and consequent 
opposition to re-elections had long been cardinal 
doctrines with the statesmen of the Revolution. The 
Articles of Confederation had contained a provision 
that no member of Congress should be allowed to serve 
more than three years in a period of six. In 1782, a 
Committee of Congress (consisting of Hamilton, Madi- 
son, and T. Fitzsimmons) had reported that: "The 
truth is, the security intended to the general liberty 
in the Confederation consists in the frequent election 
and in the rotation of the members of Congress, by 
which there is a constant and effectual check upon 
them. This is the security which the people in every 
State enjoy against the usurpations of their internal 
government, and it is the true source of security in a 
representative republic." l On the other hand, G. 
Morris now argued that under this doctrine of rotation, 
there was formed "a political school in which we were 
always governed by scholars and not by the masters", 
and that to adopt a rotation "produces instability of 
councils." In reply to these arguments, Mason main- 
tained that: "Having for his primary object, for the 
pole-star of his political conduct, the preservation of 
the rights of the people, he held it as an essential point, 
as the very palladium of civil liberty, that the great 
officers of State and particularly the Executive, should 
at fixed periods return to that mass from which they 
were at first taken, in order that they may feel and 
respect those rights and interests which are again to be 
personally valuable to them." 2 This view was shared 

1 Journals of the Continental Congress, Dec. 16, 1782. 

2 Mason, in the Virginia State Convention in 1788, stated, in opposition to the 
Constitution : "The great fundamental principles of republicanism is here sapped. 
The President is elected without rotation. . . . The President will be elected time 
after time ; he will be continued in office for life. . . . Nothing is so essential to the 
preservation of a republican government as a periodical rotation. Nothing so 
strongly impels a man to regard the interest of his constituents as the certainty of 



364 COMPLETION OF THE PLAN 

by Dr. Franklin, who said that "in free Governments, 
the rulers are the servants, and the people their su- 
periors and sovereigns. For the former, therefore, to 
return among the latter was not to degrade but to 
promote them." 

With the expression of these views, the great debate 
was closed ; and on this July 26, on motion of Mason, 
the Convention (having already voted for election by 
the Legislature) proceeded again to reverse itself as 
to the term and eligibility, by voting that the Execu- 
tive should be appointed for seven years and be ineli- 
gible a second time. And thus the subject was left 
precisely as recommended by Randolph in his original 
Resolution. 1 

It is important to note that, in almost all the votes a 
long term with no re-election was favored, if the choice 
of Executive was to be by the Legislature ; and a short 

returning to the general mass of the people, from whence he was taken, where he 
must participate their burdens. ... I should be contented that he might be 
elected for eight years ; but I would wish him to be capable of holding the office only 
eight out of twelve or sixteen years." In reply to Mason, Edmund Randolph said : 
"That which has produced my opinion against the limitation of his eligibility is 
this that it renders him more independent in his place, and more solicitous of 
promoting the interest of his constituents ; for unless you put it in his power to be 
re-elected, instead of being attentive to their interests, he will lean to the augmen- 
tation of his private emoluments." Elliot's Debates, III, 484-485. 

That Washington was not particularly favorable to the theory of rotation 
may be inferred from an account written of George Lux of Baltimore, by Alexander 
Graydon in his Memoirs of a Life Chiefly Spent in Pennsylvania (1811) : "Among 
his guests, he was once honored with the company of Mrs. Macaulay, the historian, 
whom, at his request (as he informed me) he accompanied to Mount Vernon on 
a visit to General Washington, where they stayed some days. While in con- 
versation one day at dinner, the lady, in a high, republican strain, took occasion 
to expatiate on the vast advantages of rotation in office. This was in the manner 
of appeal to her host, of whose approbation she seemed to be secure ; but as the 
General was rather a practical or accidental, rather than a republican by preference 
I will not say a republican malgrS lui he could only carry his politeness so far 
as not absolutely to dissent from the opinion, and there was, of course, no com- 
mingled flow of soul upon the occasion." 

1 Six States (New Hampshire, Connecticut, New Jersey, North Carolina, South 
Carolina, and Georgia) voted for the final resolution ; three (Pennsylvania, Dela- 
ware, and Maryland) against it ; Massachusetts was not on the floor ; and Virginia 
was divided by the temporary absence of Randolph from the room, Madison and 
Washington voting against the resolution as they were opposed to election by the 
Legislature. 



THURSDAY, JULY 26, 1787 365 

term with possibility of re-election, if the choice was 
to be otherwise than by the Legislature. In other 
words, the views of most of the delegates as to length 
of term and as to re-election were dependent on the 
mode of election. This fact is generally overlooked in 
debates at the present day over the third-term question 
and over the proposed Constitutional amendment for a 
Presidential term of office of seven years ; and votes of 
the Federal Convention are quoted as if they repre- 
sented an absolute expression of opinion of views as to 
the proper term of the Presidential office, whereas, in 
fact, they should be considered as expressing views of 
such a term only in its relation to the specific mode of 
election which was being concurrently voted. 

During the course of this long debate, three proposals 
were made (but not voted upon), which contained the 
germs of the method of Presidential election finally 
adopted in the closing sessions of the Convention. 
Williamson of North Carolina (on July 25) suggested 
that in a popular election, each voter should vote for 
three candidates (one of whom, he thought, would be 
probably from the voter's own State) ; Morris then 
suggested that each voter vote for two persons, one 
of whom should not be of his own State ; Dickinson 
of Delaware suggested that the people of each State 
should elect one of their citizens, and that the National 
Legislature or electors choose from these candidates; 
Wilson (on July 17) suggested that the people vote, 
but that in case no candidate obtained a majority, then 
the National Legislature should choose. From these 
various suggestions, there was finally reported (on 
September 4) the plan of State electors, who should 
vote for two candidates (one of whom should not be 
from the elector's own State), and choice by the Legis- 
lature, if no candidate should secure a majority of the 
electoral vote (see infra p. 623). 



366 COMPLETION OF THE PLAN 

With its action on the subject of the Executive, the 
Convention on this July 26 had now completed its 
consideration of the Randolph Resolutions, and accord- 
ingly, it adjourned until August 6, in order that the 
Committee might have time to prepare and report a 
draft of a Constitution. 1 

OUT OF CONVENTION 

Washington noted (erroneously under date of July 
87): 

"In Convention, which adjourned this day, to meet 
again on Monday, the 6th of August, that a Committee 
which had been appointed (consisting of 5 members) might 
have time to arrange, and draw into method and form the 
several matters which had been agreed to by the Conven- 
tion as a Constitution for the United States. Dined at 
Mr. Morris's and drank tea at Mr. Powell's." 

The news of the adjournment was announced in the 
newspapers as follows : 2 

"The Federal Convention having resolved upon the 
measures necessary to discharge their important trust 
adjourned in order to give a committee, appointed for the 
purpose, time to arrange and systematize the materials 
which that honorable body have collected. The public 
curiosity will soon be gratified ; and it is hoped, from the 
universal confidence reposed in this delegation, that the 
minds of the people throughout the United States are pre- 
pared to receive with respect and to try with a fortitude 
and perseverance the plan which will be offered to them by 
men distinguished for their wisdom and patriotism." 

1 Before adjourning, the Convention decided, on motion of Mason, to direct the 
Committee of Detail to consider the subject of property and citizenship qualifica- 
tions for members of the Legislature. Mason also wanted the Committee to report 
a provision that the seat of the General Government should not be fixed at any 
State Capital ; but he did not press his idea, not wishing "to excite any hostile pas- 
sions against the system." 

2 Pennsylvania Herald, July 28 ; Pennsylvania Packet, July 81 ; Freeman s Jour- 
nal, Aug. 1 ; Pennsylvania Journal, Aug. 1 ; Connecticut Courant, Aug. 6 ; Virginia 
Independent Chronicle, Aug. 8 ; Independent Chronicle (Boston), Aug. 9 ; New York 
Daily Advertiser, Aug. 14, 1787. 



THURSDAY, JULY 26, 1787 367 

Governor Caswell of North Carolina wrote to Richard 
D. Spaight, one of the delegates : l 

"From the hint you threw out in your first letter, I am 
induced to think that the plan of a National Parliament 
and Supreme Executive with adequate powers to the Gov- 
ernment of the Union will be more suitable to our situation 
and circumstances than any other; but I should wish also 
an independent Judicial department to decide any con- 
test that may happen between the United States and in- 
dividual States, and between one State and another; this, 
however, is only a hint, you may not see the necessity of 
it as forcibly as I do/' 

1 North Carolina State Records, XX, 752. 



CHAPTER SEVEN 
THE PREAMBLE AND CONGRESS 

July 27-31, August 1-4 . Recess 

(July 29, August 5) . . (Sunday) 

August 6 Report of Committee of Detail 

August 7 The Preamble 

August 8 Qualification for Voters 

August 9 Congressional Elections 

August 10 Qualifications of Members of Con- 
gress 

August 11 Adjournments, Privileges, and Jour- 
nals of Congress 

(August 12) (Sunday) 

August 13 Power to Originate Revenue Bills 

Monarchy 

August 14 Compensation of Members of Con- 
gress 

FRIDAY, JULY 27, 1787 

Beginning with this day, the Convention took a 
recess, for a period of ten days, not assembling again 
until Monday, August 6. 

Jacob Hiltzheimer wrote, this day, in his diary : 

" Gave the Hon. General Pinckney of South Carolina, and 
a member of the present Convention, a list of the best public 
houses on the road to Bethlehem, where he is going to visit 
for a few days, as the Convention had adjourned for ten 
days." 

James Monroe wrote, this day, to Jefferson in Paris : 

"The affairs of the Federal Government are, I believe, 

in the utmost confusion. The Convention is an expedient 



FRIDAY, JULY 27, 1787 369 

that will produce a decisive effect. It will either recover 
us from our present embarrassments, or complete our ruin ; 
for I do suspect that, if what they recommend should be 
rejected, this would be the case. But I trust that the 
presence of Gen. Washington will have great weight in the 
body itself, so as to overawe and keep under the demon of 
party, and that the signature of his name to whatever act 
shall be the result of their deliberations will secure its pas- 
sage thro the Union. I have heard from Beckley, tho' not 
from himself (who accompanied the Governor up, in ex- 
pectation of being appointed clerk), they had agreed upon 
giving the United States a negative upon the laws of the 
several States, if it can be done consistently with the 
Constitution of the several States. Indeed, it might be well 
to revise them all and incorporate the Federal Constitution 
in each. This I should think proper. It will, if the body is 
well organized, be the best way of introducing uniformity in 
their proceedings that can be devised of a negative kind, or 
by a power to operate indirectly. But a few months will 
give us the result, be it what it may." 

On this day also, Alexander Martin, a delegate from 
North Carolina, wrote to Governor Caswell, describing 
the need for the Secrecy Rule and emphasizing the 
difficulty of the task of the Convention : 

"You may think I have been remiss in making you com- 
munications from the Federal Convention, which you had 
a right to expect from my engagements to you in my last 
letter from Carolina. But when you are informed that the 
members of that body are under an injunction of secrecy 
till their deliberations are moulded firm for the public eye, 
you will readily, I flatter myself, excuse me. This cau- 
tion was thought prudent, lest unfavorable representations 
might be made by imprudent printers of the many crude 
matters and things daily uttered and produced in this body, 
which are unavoidable, and which in their unfinished state 
might make an undue impression on the too credulous and 
unthinking mobility. How long before the business of 



370 THE PREAMBLE AND CONGRESS 

Convention will be finished is very uncertain, perhaps 
not before September if then. Believe me, Sir, it is no 
small task to bring to a conclusion the great objects of a 
United Government viewed in different points by thirteen 
Independent Sovereignties ; United America must have 
one general interest to be a Nation ; at the same time pre- 
serving the particular interest of the individual States. 
However, Sir, as soon as I am at liberty to make communi- 
cations, Your Excellency shall have the earliest informa- 
tion." 

Hector Jean de Crevecoeur, the noted Frenchman, 
author of "Letters of an American Farmer", who was 
visiting this country for a second time, wrote to the 
Due de Rochefoucauld from New York, this day, an 
interesting picture of conditions as he now saw them : 1 

"The space of two years has necessarily brought three 
great changes in the political complexion of this Conti- 
nent. The weakness of all these separate Governments 
and their independence of each other, the diversity of their 
interests, the nullity of the Confederation, the hostility 
of the Spaniards on the Mississippi which they have wholly 
closed to navigation by Americans, the tremendous in- 
crease of new population upon the Ohio, the particular 
care with which the British increase their forces in Canada, 
the Federal Convention now sitting in Philadelphia, pre- 
sided over by General Washington and composed of the 
most enlightened men of the Continent these are the 
prominent features of the new picture which North America 
now presents and which deserves to be carefully followed. 
The insufficiency of all these democracies, the little uni- 
formity which these States have observed in their laws 
as to commerce, the lessening of their dignity and their 
National credit, the fear of more universal dangers and 
perhaps of a separation such are the reasons which have 
struck the best minds from North to South, and have de- 
termined them, as a last resource, to form what they call a 
Federal Convention. Thus far the most profound secrecy 

1 Copies of Jean de Crevecosur Letters MSS. in Library of Congress. 



SATURDAY, JULY 28, 1787 371 

has been observed by all the members who compose it. 
It has been very astonishing to see that General Washing- 
ton, who had sworn to pass the rest of his days in obscurity 
as a private citizen, has been persuaded to expose his repu- 
tation to the dangers, perhaps, of a second Revolution ; 
but he has undoubtedly thought that he must yield once 
more to the call of his country. Such is the veneration 
and love which the presence of this great man inspired 
that it was not possible for him to review the fine militia 
of Philadelphia . . ., as he had been asked, so great was 
the crowd which increasingly surrounded him and wished 
to see and talk with him. It is upon tender and profound 
attachment that people found their hope that the plans 
which the Convention shall propose will be unanimously 
approved and ratified by the States. I fear, nevertheless, 
that this will not happen without some moves in opposi- 
tion." 

SATURDAY, JULY 28, 1787 

Washington noted : 

"Dined at the Cold Spring Club with the Club at Springs- 
bury. Drank tea there, returned to Mr. Morris's and spent 
the evening there." 

He apparently did not attend the play, which was 
elaborately advertised at the Opera House as : 

"A Concert and Comic Opera (never performed here) 
in three Acts called Selima and Azor or the Powers of En- 
chantment ... to which will be added The Modern Lovers 
or Generosity Rewarded. The Managers respectfully in- 
form the Public that the above Opera contains more Capi- 
tal Songs than any Musical Entertainment that has ap- 
peared on this side of the Atlantic, and as they have spared 
no expense in the Scenery and Decorations, they trust it 
will be worthy the attention of a judicious Community." 

Madison wrote, this day, to James Madison, Sr. : 
'*! am sorry that I cannot gratify your wish to be in- 
formed of the proceedings of the Convention. An order 



372 THE PREAMBLE AND CONGRESS 

of secrecy leaves me at liberty merely to tell you that noth- 
ing definitive is yet done, that the session will probably 
continue for some time yet, that an adjournment took 
place on Thursday last until Monday week, and that a 
Committee is to be at work in the meantime." 

SUNDAY, JULY 29, 1787 

Washington noted : 1 

4 * Dined and spent the whole day at Mr. Morris's, princi- 
pally in writing letters." 

MONDAY, JULY 30, 1787 

Washington spent his time during the ten days' 
adjournment of the Convention on fishing trips with 
Gouverneur Morris and Mr. and Mrs. Robert Morris. 
He noted this day : 2 

"In company with Mr. Govr. Morris and in his Phaeton 
with my horses, went up to one Jane Moore's in whose 
house we lodged in the vicinity of Valley Forge to get Trout." 

On this day, the Connecticut Courant reported the 
arrival from Philadelphia on July 22, of Roger Sherman, 
a delegate from Connecticut, and it repeated the report 
as to unanimity, saying: "No particular intelligence 
respecting the proceedings of that illustrious assembly 
is communicated. We only learn, in general, that a 
happy and auspicious unanimity prevails in their 
councils, and that they will probably finish the impor- 
tant business entrusted to them by the beginning of 
September." On the same day, the Boston Gazette 

1 James M. Beck in The Constitution of the United States (1925), p. 77, says : "A 
letter by Mrs. Morris gives us a passing glimpse of the silent soldier as he worked 
with his colleagues. She tells us that he would come into the house so quietly that 
they would be wholly unaware jof the fact until they discovered it by accident. He 
would go to his room and remain for hours, and they would find him there absorbed 
in his papers or sitting in silent meditation." 

* Pennsylvania Packet, Aug. 1, 1787, said: "His Excellency, General Washing- 
ton set out for Moore Hall, in order to visit his old quarters at the Valley Forge in 
this State." 



TUESDAY, JULY 31, 1787 373 

stated that: "Nothing authentick has yet transpired 
from the honorable Federal Convention. It is said, 
however, that they are out on Committees. It is not 
doubted that when these Committees report, some 
important resolutions, resolutions which may be big 
with the fate of America, will be adopted and made 
publick." ! 

TUESDAY, JULY 31, 1787 

Washington noted this day : 

"Whilst Mr. Morris was fishing, I rid over the whole 
old Cantonment of the American Army of the Winter 1777 
and 8, visited all the Works wch. were in Ruins ; and the 
Incampments in woods where the grounds had not been 
cultivated. On my return back to Mrs. Moore's, observ- 
ing some Farmers at Work, and entering into Conversa- 
tion with them, I received the following information with 
respect to the mode of cultivating Buckwheat, and the appli- 
cation of the grain. . . . On my return to Mrs. Moore's, 
I found Mr. Robt. Morris and his lady there. Spent the 
day there fishing, etc., and lodged at the same place." 

John Jay wrote this day from New York to John 
Adams that "It seems that the Convention at 
Philadelphia have agreed on the leading principles 
or great outlines of their plan, and appointed a com- 
mittee to put it into form ; but we know not what it is, 
and I believe it is best that we should not." Nicholas 
Gilman of New Hampshire wrote this day to Joseph 
Oilman as to the "critical state of affairs ", and it 
appeared that he did not realize the binding force of 
the Secrecy Rule, for he said : 

"Much has been done (though nothing conclusively) 
and much remains to do. A great diversity of sentiment 
must be expected on this great occasion; feeble minds 

1 Published also in Connecticut Courant, July 23 ; Independent Chronicle. July 
26, 1787. 



374 THE PREAMBLE AND CONGRESS 

are for feeble measures and some for patching the old gar- 
ment with here and there a shred of new stuff; while vig- 
orous minds and warm constitutions advocate a high toned 
Monarchy This is perhaps a necessary contrast, as ' all 
nature's difference keeps all nature's peace.' It is prob- 
able the conclusion will be on a medium between the two 
extremes. 

A secrecy is not otherwise enjoined than as prudence 
may dictate to each individual in a letter to my brother 
John, of the 28th instant, I gave him (for the satisfaction 
of two or three who will not make it public) a hint respect- 
ing the general principles of the plan of National Govern- 
ment, that will probably be handed out which will not 
be submitted to the Legislatures but after the approbation 
of Congress to an assembly or assemblies of Representa- 
tives recommended by the several Legislatures, to be ex- 
pressly chosen by the people to consider and decide thereon. 

Great wisdom and prudence, as well as liberality of senti- 
ment and a readiness to surrender natural rights and privi- 
leges for the good of the Nation, appears in the Southern 
delegates in general; and I most devoutly wish that the 
same spirit may pervade the whole Country, that the people, 
by absurdly endeavoring to retain all their natural rights, 
may not be involved in calamitous factions which would 
end but with the loss of all. ... I think the business of 
the Convention will not be completed until the first of 
September." 

William White, Bishop of Pennsylvania, wrote to 
Dr. Richard Price in London : 1 

"The interest you take, sir, in the civil happiness of 
America will doubtless make you anxious to hear of the 
event of the Convention now sitting for the improvement 
of our Federal Government. As they observe secrecy in 
their measures, I have cautiously avoided every thing 
which might look like a prying into their system. This 
much, however, I find, that gentlemen among them whom 

1 Price Papers in Mass. Hist. Soc. Proc., %d Series (1903), XVII. 



WEDNESDAY, AUGUST 1, 1787 375 

I consider as possessed of great and enlightened minds 
entertain agreeable prospects of the occasion. It is now 
known that they have settled the principles of the plan 
which they are to propose, as the body have lately adjourned 
for a short time, leaving a Committee to digest and arrange 
the business." 

WEDNESDAY, AUGUST 1, 1787 

Washington noted : 

"About 11 o'clock after it had ceased raining, we all 
set out for the City and dined at Mr. Morris's." 

Pierce Butler, a delegate from South Carolina, wrote 
from New York to his son, Weedon Butler : 

"As I declined the honorary fellow citizens offered me of 
the Chief Magistracy, I could not refuse the last appoint- 
ment of acting as one of their Commissioners to the Con- 
vention to be held at Philadelphia. No doubt you have 
heard of the purport of the meeting to form a stronger 
Constitution on strict Foederal principles for the govern- 
ment of the whole. I hope we may succeed. Our coun- 
try expects much of us. We have sat every day since the 
25th of May till last Saturday, when we adjourned for one 
week. Having placed my family here, Philadelphia not 
being so healthy, I embraced the opportunity of visiting 
them." 

James Madison, Sr., wrote this day from Virginia to 
James Madison, Jr., suggesting a possible means of 
evasion of the Secrecy Rule : 

"We arc here, and I believe everywhere, all impatience 
to know something of your Conventional deliberations. 
If you cannot tell us what you are doing, you might at least 
give us some information of what you are not doing. This 
would afford us a clue for political conjecture, and perhaps 
be sufficient to satisfy present impatience. I hope you 
have already discovered the means of preserving the Ameri- 
can Empire united, and that the scheme of a disunion has 



376 THE PREAMBLE AND CONGRESS 

been found pregnant with the great evils. . . . We can 
only hope . . . that your exertions will be commensurate 
to the great expectations which have been formed." 

William Short wrote from Paris, this day, to 
Madison : l 

"We are happy, sir, in being of a country where the 
rights of man are considered the gift of heaven and not the 
grant of a crowned head. But we should be still more 
happy if our countrymen knew how to estimate such a 
situation. The result of the deliberations of the Con- 
vention and the spirit with which they may be received 
in the different States will show whether we know how to 
make small sacrifices, where necessary to secure general 
happiness. I confess to you, sir, that past experiences 
makes me fear to look forward to the event of the trial 
now making. A want of certainty of its doing good, and a 
certainty of its doing much harm if it does not, makes me 
regard with anxiety the dubious event. The representa- 
tion, however, is such an one as must affect whatever can 
be affected by such a Convention. You may be sure, sir, 
I am happy to see that Virginia has furnished her full quota 
of virtue and talents on this occasion. I am sorry that the 
Socrates of our State should have been obliged to with- 
draw his aid on account of the indisposition of a part of his 
family." 

The Massachusetts Centinel published a letter from 
Philadelphia, describing the attitude of that city 
towards the Convention : 

"The Federal Convention have acquired a large share 
of the confidence of this city ; and there is little doubt of 
our taking the lead in adopting such a Government as they 
shall recommend. General Washington presides in the 
Convention with his usual dignity. The venerable Dr. 
Franklin attends it daily and is contributing his experience 

1 Madison Papers MSS. t in Library of Congress. The " Socrates " referred to 
in this letter was George Wythe, then sixty-one years of age, and he had left the 
Convention, June 5, owing to the serious illness of his wife at home in Virginia. 



WEDNESDAY, AUGUST 1, 1787 377 

and knowledge to assist his country in her present crisis. 
Mr. Dickinson, it is said, has turned his thoughts for some 
time past to the business of the Convention and intends 
to offer them to his country. From the characters of the 
gentlemen who compose this illustrious Assembly, from the 
increase of our National difficulties, and above all, from 
the growing disposition our citizens everywhere discover 
to improve our Foederal Government, I have not a doubt 
but that America will in a few years realize all the happi- 
ness for which she has contended." 

The Gazette published an interesting comment on 
taxation a subject with which the Convention was 
soon to deal : 

"To encourage agriculture, it is to be hoped that the 
present mode of taxing lands so heavily will be laid aside 
otherwise, instead of seeing our merchants, shopkeepers, 
lawyers and doctors retreat to farms, we shall soon see our 
farmers retreat to Kentucky, or to the shores of the South 
Sea, in order to enjoy the fruits of their industry. An 
efficient Federal Government alone can relieve us from our 
oppressive State systems of taxation, and realize all our 
hopes and wishes of National glory and prosperity." 

The Herald published a statement as to the alarm- 
ing antagonism of Governor George Clinton and his 
adherents in New York to the work of the Convention : 

"A gentleman from New York informs us that the anti- 
foederal disposition of a great officer of that State has seri- 
ously alarmed the citizens, as every appearance of opposi- 
tion to the important measures upon which the people 
have reposed their hopes created a painful anticipation of 
anarchy and division. At this critical moment, men who 
have an influence upon society should be cautious what 
opinions they entertain and what sentiments they deliver 
yielding to the passions and exigencies of the country all 
dogmatic fondness for particular systems and arrange- 
ments." 



378 THE PREAMBLE AND CONGRESS 

THURSDAY, AUGUST 2, 1787 

Washington noted : 

" Dined, drank tea, and spent the evening at Mr. Morris's." 

A letter written, this day, by Mrs. Mercy Warren, 
the historian of the American Revolution, to the English 
historian, Mrs. Catharine Macaulay, discloses in strik- 
ing fashion the grave fears which those who later 
became Antifcderalists felt lest the military class, the 
Society of the Cincinnati, and the favorers of aristoc- 
racy and monarchy, might exercise an undue influence 
in the determination of the principles of the new Gov- 
ernment : l 

"Every man of sense is convinced a strong, efficient Gov- 
ernment is necessary ; but the old patriots wish to see a form 
established on the pure principles of Republicanism. An 
influential party in all the States, rendered so, some of them 
by office, others more by the accidental possession of prop- 
erty than real abilities, secretly wish for Aristocracy ; while 
the young, ardent spirits, coming forward in pursuit of 
honours, office, and emolument, cry out boldly for Mon- 
archy. These, joined by the whole class of Cincinnati who 
are panting for nobility and with the eagle dangling at 
their breast assume distinctions that are yet new in this 
Country these parties make a formidable body, ready to 
bow to the sceptre of a King, provided they may be the 
lordlings who in splendid idleness may riot on the hard 
earnings of the peasant and the mechanic. These plead 
the necessity of a standing army to suppress the murmurs 
of a few who yet cherish that spirit of freedom which only 
calls forth the exertions and leads to the best improvement 
of the human mind. America has fought for this boon 
and successfully obtained it by the sacrifice of her blood, and 
her treasures, her heroes, and her friends; and Heaven 
forbid that it should be sported away by the blind fury of 
a licentious mob, or the subtile intrigues of those who had 

1 Mercy Warren Papers MSS, in possession of Winslow Warren, Dedham, Mass. 



THURSDAY, AUGUST 2, 1787 379 

little share in her struggles, nor ever felt that energetic 
spirit which procured her emancipation and gave her a 
rank among the nations. . . . The Convention is yet 
sitting; and though some have a seat there who never 
participated in the distress of this country, yet it is adorned 
by others who acted an illustrious part in the late Revolu- 
tion. The eyes of all Europe are upon them and America 
in distress is stretching out her arms for relief, though she 
yet appears in so infantile a state in some respects, as scarcely 
to know what it is she needs, much less is she capable of 
pointing out at once the best means for her own security, 
freedom, and happiness. God grant that a system may be 
devised that will give energy to law and dignity to Govern- 
ment, without demolishing the work of their own hands, 
without leveling the fair fabric of a free, strong and National 
Republic, beneath the splendid roof of royal or aristocratic 
pageantry. You will doubtless be surprised when I tell 
you that Republicanism, the idol of some men, and Inde- 
pendence, the glory of all, are nearly dwindled into theory. 
The ideas of the first are defaced by a spirit of anarchy, 
and the latter almost annihilated by the views of private 
ambition and a rage for the accumulation of wealth by a 
kind of public gambling instead of private industry. . . . 
Yet, it must be a work of time to obliterate opinions, founded 
in reason, and formed by enthusiasm till they have been 
made a part of the religious creed of some of the patriots of 
1775. The yoke cannot readily be made supple enough to 
be worn by those who would spurn the hand that should 
attempt to affix it, though under the display of the banarets 
of a standing army aided by the noble order of the Cin- 
cinnati. It is difficult to calculate the consequences of 
present appearances; the spirit of intrigue is matured in 
this country, even among the politicians of yesterday. 
A sample of this truth may be exhibited in the future 
establishments of America, and the systems of policy that 
may be adopted by the busy genius's now plodding over 
untrodden ground, and who are more engaged in the fabrica- 
tion of a strong Government than attentive to the ease, 
freedom and equal rights of man.** 



380 THE PREAMBLE AND CONGRESS 

FRIDAY, AUGUST 3, 1787 

Washington noted : 

"In company with Mr. Robert Morris and his Lady 
and Mr. Gouvr. Morris, I went up to Trenton on another 
Fishing party. Dined and Lodged at Colo. Sam Ogden's 
at the Trenton [Iron] Works. In the evening fished, not 
very successfully." 

The Packet (August 4) said : 

"His Excellency General Washington attentive to every- 
thing interesting to this country yesterday visited and 
examined the steel furnace belonging to Nancarrow and 
Matlack recently rebuilt in this city. It is much the largest 
and best constructed furnace in America, being charged 
with fourteen tons of iron, at that time converting into steel ; 
and His Excellency was pleased to express his approbation 
of it. The encouragement given by the countenance of 
distinguished characters to manufacturers among us is of 
much greater importance to the public than many un- 
thinking people are aware of." 

Jefferson wrote, this day, from Paris, to Edmund 
Randolph, in the Convention : 

"I am anxious to hear what you have done in your Fed- 
eral Convention. I am in hopes at least you will persuade 
the States to commit their commercial arrangements to 
Congress, and to enable them to pay their debts, interest 
and capital. The coercive powers supposed to be wanting 
in the Federal head, I am of opinion they possess by the 
law of nature, which authorizes one party to an agreement 
to compel the other to performance. A delinquent State 
makes itself a party against the rest of the Confederacy." 

SATURDAY, AUGUST 4, 1787 

Washington noted : 1 

"In the morning and between breakfast and dinner, 
fished again with more success (for perch) yesterday. Dined 

1 At the Opera House there was performed a "Concert for the benefit of the poor 
and Comic Lecture in five Acts called The Generous American, concluding with a 
Comic Opera in two acts called The Padlock." 



SATURDAY, AUGUST 4, 1787 381 

at Geiil. [Philemon] Dickinson's on the east side of the 
River a little above Trenton and returned in the evening to 
Colo. Ogden's." 

On this day, James McHenry, a delegate from Mary- 
land, who had been absent from the Convention since 
June 1, returned to Philadelphia, and entered in notes 
kept by him of the Convention proceedings from this 
date: "The Committee of Convention ready to 
report. Their Report in the hands of Dunlop, the 
printer, to strike off copies for the members." That 
the delegates had obtained advance information as to 
the nature of this Report from the Committee of Detail 
and as to the broad powers which it proposed to vest 
in each of the three branches of the new Government 
is evident from a further note made by McHenry on 
this day, stating that he "proposed to Mr. D. Carroll, 
Mr. Jenifer, Mr. Mercer and Mr. Martin (his colleagues) 
to meet to confer on the Report and to prepare our- 
selves to act in unison," and that they met at Mr. 
Carroll's lodgings in the afternoon ; that at this meeting 
Martin said that "he was against the system, that a 
compromise only had enabled its abetters to bring it 
into its present stage, that had Mr. Jenifer voted with 
him, things would have taken a different turn. Mr. 
Jenifer said he voted with him, till he saw it was in vain 
to oppose its progress." Then, wrote McHenry, "find- 
ing that we could come to no conclusion, I recommended 
meeting again tomorrow, for unless we could appear in 
the Convention with some degree of unanimity, it 
would be unnecessary to remain in it, sacrificing time 
and money, without being able to render any service. 
They agreed to meet tomorrow except Mr. Martin 
who said he was going to New York and would not be 
back till Monday following." As a final suggestion 
to his colleagues, McHenry urged that a motion be 
made by them to "postpone the Report, to try the 



382 THE PREAMBLE AND CONGRESS 

affections of the House to an amendment of the Confed- 
eration, without altering the sovereignty of suffrage" ; 
and if this motion should fail, "that the delegation 
would act unanimously in trying to perfect the system 
proposed by the Committee Report." 

That the Maryland delegation should have con- 
sidered that, at this late date in the Convention and 
after the adoption of the Compromise, it might still be 
possible to return to the old plan of merely amending 
the Confederation, is a sign that the victory of the 
Nationalists' theory was still not regarded as entirely 
secure. 

Jefferson writing, this day, from Paris to Edward 
Carrington in Congress in New York, gave his views 
as to the form of new Government needed : 

"I am happy to find that the States have come so gen- 
erally into the scheme of the Federal Convention, from 
which I am sure we shall see wise propositions. I confess 
I do not go as far in the reforms thought necessary as some 
of iny correspondents in America ; but if the Convention 
should adopt such propositions I shall suppose them neces- 
sary. My general plan would be to make the States one 
as to everything connected with foreign nations, and sev- 
eral as to everything purely domestic. But with all the 
imperfections of our present Government, it is without com- 
parison the best existing or that ever did exist. Its great- 
est defect is the imperfect manner in which matters of 
commerce have been provided for. It has been so often 
said, as to be generally believed, that Congress have no 
power by the Confederation to enforce anything, for e.g., 
contributions of money. It was not necessary to give 
them that power expressly ; they have it by the law of 
nature. When two parties make a compact, there results 
to each a power of compelling the other to execute it. Com- 
pulsion was never so easy as in our case, where a single 
frigate would soon levy on the commerce of any State the 
deficiency of its contributions; nor more safe than in the 



SUNDAY, AUGUST 5, 1787 383 

hands of Congress which has always shown that it would 
wait, as it ought to do, to the last extremities before it would 
execute any of its powers which are disagreeable. I think 
it very material to separate in the hands of Congress the 
Executive and Legislative powers, as the Judiciary already 
are in some degree. This I hope will be done. The want 
of it has been the source of more evil than we have expe- 
rienced from any other cause." 

Jefferson also wrote to Benjamin Hawkins : 

"I look up with you to the Federal Convention for an 
amendment of our Federal affairs. Yet I do not view 
them in so disadvantageous a light at present as some do. 
And above all things, I am astonished at some people's 
considering a kingly Government as a refuge. . . . Send 
them to Europe to see something of the trappings of mon- 
archy, and I will undertake that every man shall go back 
thoroughly cured. If all the evils which can arise among 
us from the republican form of Government from this day 
to the day of judgment could be put into a scale against 
what this country suffers from its monarchical form in a 
week or England in a month, the latter would preponderate." 

SUNDAY, AUGUST 5, 1787 

Washington noted : 

"Dined at Colo. Ogden's early; and about 4 o'clock 
set out for Philadelphia halted an hour at Bristol, after 
which in the company I came, I returned to Philadelphia, 
at which we arrived abt. 9 o'clock." 

Dr. James McClurg wrote from Virginia to Madison, 
this day : 

"I am much obliged to you for your communication of 
the proceedings of the Convention since I left them; for I 
feel that anxiety about the result which its importance 
must give to every honest citizen. If I thought that my 
return could contribute in the smallest degree to its im- 
provement, nothing should keep me away. But as I know 



384 THE PREAMBLE AND CONGRESS 

the talents, knowledge and well established character of 
our present delegates have justly inspired this country 
with the most entire confidence in their determinations, 
and that my vote could only operate to produce a division 
and so destroy the vote of the State, I think that my at- 
tendance now would certainly be useless, perhaps injurious. 
. . . The doctrine of three Confederacies, or great Repub- 
lics has its advocates here. . . . The necessity of some 
independent power to control the Assembly by a negative 
seems now to be admitted by the most zealous Republi- 
cans. ... I hope that our Representative, Marshall, 
will be a powerful aid to Mason in the next Assembly. He 
has observed the continual depravation of men's manners 
under the corrupting influence of our Legislature; and is 
convinced that nothing but the adoption of some efficient 
plan from the Convention can prevent anarchy first, and 
civil convulsions afterwards." 

MONDAY, AUGUST 6, 1787 

IN CONVENTION 
Report of the Committee of Detail 

On this day, John Rutledge, as Chairman of the 
Committee of Detail, made its report of a draft of a 
Constitution a printed pamphlet of seven folio pages 
with broad margins for notes by each delegate. While 
based on the votes of the Convention adopting or 
modifying Randolph's Virginia Plan of May 29, it 
embodied many portions of the Articles of Confeder- 
ation and of the Plans submitted by Paterson and by 
Charles Pinckney, as well as many provisions from the 
various State Constitutions which the Committee had 
found applicable. One other source of the powers 
which it was proposed to vest in the new Congress has 
been somewhat overlooked by historians, namely, the 
report made on August 22, 1781, by the Committee of 
the Old Congress appointed "to prepare an exposition 



MONDAY, AUGUST 6, 1787 385 

of the Confederation, a plan for its complete execution, 
and supplemental articles." 1 This Committee, con- 
sisting of Edmund Randolph, Oliver Ellsworth, and 
James M. Varnum, had recommended that "the 
Confederation requires execution in the following 
manner" ; and it is interesting to see how many of the 
recommendations were now embodied, six years later, 
in the Report of the Committee of Detail (of which 
Randolph and Ellsworth were members) : 

1. By adjusting the mode and proportions of the militia 
aid to be furnished to a sister State labouring under in- 
vasion. 

2. By describing the privileges and immunities to which 
the citizens of one State are entitled in another. 

3. By setting forth the conditions upon which a crimi- 
nal is to be delivered up by one State upon the demand of 
the Executive of another. 

4. By declaring the method of exemplifying records 
and the operation of the Acts and judicial proceedings of 
the Courts of one State contravening those of the States 
in which they are asserted. . . . 

7. By specifying the privileges of delegates from ar- 
rests, imprisonments, questioning for free speech and de- 
bates in Congress. . . . 

9. By one universal plan of equipping, training and 
governing the militia. . . . 

11. By establishing rules for captures on land and the 
distribution of the sales. 

12. By ascertaining the jurisdiction of Congress in terri- 
torial questions. 

13. By erecting a mint. 

14. By fixing a standard of weights and measures 
throughout the U. S. 

15. By appointing a Committee for Indian Affairs. 

16. By regulating the Postoffice. 

17. By establishing a census of white inhabitants in each 
State. 

1 Journals of the Continental Congress (1912), XXI. 



386 THE PREAMBLE AND CONGRESS 

18. By publishing the Journal of Congress monthly. 

21. By providing means of animadverting on delinquent 
States. 

And the Committee of 1781 had urged the several 
States to grant the following additional powers to 
Congress (together with some others of less note) : 

1. To lay embargoes in time of war without any limita- 
tion. 

2. To prescribe rules for impressing property into the 
service of the U. S., during the present war. 

3. To appoint the Collectors of and direct the mode of 
accounting for taxes imposed according to the requisitions 
of Congress. 

4. To recognize the independence of and admit into the 
Federal Union any part of one or more of the U. S., with 
the consent of the dismembered State. 

6. To distrain the property of a State delinquent in its 
assigned proportion of men and money. 

7. To vary the rules of suffrage in Congress. . . . 

There are now in existence (brought to light in recent 
years) several documents used by the members of the 
Committee of Detail in the performance of their work. 
The most important of them, consisting of nine folio 
pages in the small, fine handwriting of Edmund Ran- 
dolph, undoubtedly represents the first and basic draft 
of the Constitution, with introductory and concluding 
explanations and occasional running comments in the 
text. 1 It has been well described by Farrand as 
follows: "This draft was subjected to extensive and 
occasionally to radical changes, some of which were 
made in the writing of Randolph, but others were by 

1 This draft was first discovered in the papers of George Mason, by Moncure D. 
Conway and described by him in his Forgotten Chapters of History in 1881. Conway 
erroneously thought that the draft was one prepared by Randolph before the meet- 
ing of the Convention. See also The Framing of the Constitution (1913), by Max 
Farrand. 



MONDAY, AUGUST 6, 1787 387 

the hand of Rutledge. The inference is that the draft 
was submitted to the Committee, and after discussion 
and criticism, the modifications agreed upon were 
inserted by the Chairman. As an indication that the 
document was one of a series, practically every item in 
it has been checked off with a pen. It is quite possible 
that James Wilson had been working independently 
at the same time, and in a similar way, but the next 
stage of which we have record shows documents in the 
handwriting of Wilson, presenting portions of the 
Randolph draft further developed, together with ex- 
tracts carefully taken from the New Jersey plan and 
extracts from the plan of Charles Pinckney. These 
disjointed parts were then apparently worked over by 
Wilson and fitted together into a single harmonious 
document. This may have been done alone or with 
the assistance of the rest of the Committee. . . . The 
Wilson compilation represented a fairly advanced stage 
of the Committee's work. Certainly, it seems to have 
been satisfactory to the other members, for it was gone 
over by them not only for the purpose of making 
important changes, but to see that the phrasing of the 
various clauses accorded with what they wished to 
convey. As in the case of the Randolph draft, most of 
the changes made were in the handwriting of Rutledge, 
the Chairman. This represented the last step in the 
preparation of the Report, except that, as the docu- 
ment was to be printed, a fair copy was doubtless made 
before it was turned over to the printer." 

These papers make it evident that the authorship 
of the final draft can be attributed to no single one 
member of the Committee. To Randolph must go 
the lion's share of the credit. Oliver Ellsworth also 
claimed his share. 1 

1 Ellsworth is reported to have said to his son, in the closing years of his life, 
"that President Washington's influence while in the Convention, was not very 



388 THE PREAMBLE AND CONGRESS 

When the report was presented to the Convention, 
on this August 6, it was found to consist of a pream- 
ble and twenty-three articles, divided into forty-one 
sections. 

The first matter of note in the Report was that the 
term "Legislature of the United States", contained 
hitherto in the votes of the Convention, became the 
' ' Congress ' ' ; the term * ' the first branch ' ' became 
"the House of Representatives", and "the second 
branch" became "the Senate", thus following the 
provisions of most of the State Constitutions ; for in 
all the States except Delaware and New Jersey, the 
upper House was called the Senate, and in Massa- 
chusetts, New Hampshire, Pennsylvania, Georgia, and 
South Carolina the lower branch was called the 
"House of Representatives" (in New Jersey, New 
York, and Delaware, it was called the "Assembly"; 
in Virginia and Maryland, the "House of Delegates"; 
and in North Carolina, the "House of Commons"). 

Three articles of the Report, containing twenty-four 
sections, provided for the qualifications of Members 
of the Congress and regulations of their Legislative 
proceedings all of which were taken from similar 
provisions in the State Constitutions, principally from 
those of New York and Massachusetts. 

The fundamental change introduced by the Report 
was in Article VII, in which, instead of vesting the 
Congress with the broad and indefinite authority, as 
voted by the Convention, viz. : "the Legislative rights 
vested in Congress by the Confederation", and more- 
over, power "to legislate in all cases for the general 
interests of the Union, and also in those to which the 

great, at least not much as to the forming of the present Constitution he said 
that he himself was one of the five men who drew up that Constitution." Life of 
Oliver Ellsworth (1905), by William Garrott Brown, p. 169. As to James Wilson, see 
Pickering Papers MSS., in Mass. Hist. Soc. Library, letter of Pickering to John 
Lowell, Jan. 9, 1828, March 10, 1828. 



MONDAY, AUGUST 6, 1787 389 

States are separately incompetent, or in which the 
harmony of the United States may be interrupted by 
the exercise of individual legislation ", the Committee 
now vested in Congress eighteen specific and limited 
powers, definitely set forth. At least seven of these 
powers were taken bodily from the old Articles of 
Confederation to make war ; to make rules concern- 
ing captures on land and water ; build and equip 
fleets ; coin money ; establish the standard of weights 
and measures ; establish post offices ; borrow money 
and emit bills on the credit of the United States. From 
the Plan submitted by Charles Pinckncy on May 29, 
the Committee took the following powers for Congress 
"to regulate trade and levy imposts 1 '; 1 and from 
Paterson's Plan of June 15, the Committee took the 
powers to levy import duties and stamp taxes, and "to 
pass acts for the regulation of trade and commerce as 
well with foreign nations as with each other." In 
addition, the Committee's Report vested in Congress 
the following powers, not before appearing in any plan 
submitted "to lay and collect taxes, duties, imposts 
and excises" ; "to establish an uniform rule of natural- 
ization " throughout the Nation ; "to regulate the value 
of foreign coin" ; "to appoint a Treasurer by ballot" ; 
"to subdue a rebellion in any State on the application 
of its Legislature" ; "to raise armies" ; "to call forth 
the aid of the militia in order to execute the laws of the 
Union, enforce treaties, suppress insurrections, and repel 
invasions." In this Article, there was one very 
significant and new feature. The Committee inserted 
six express prohibitions on Congressional power the 
first as to the crime of treason ; second, against export 
duties ; third, against taxes or restrictions on migration 

1 The Pinckney Plan referred to in the text of this book throughout is the res- 
toration of the plan by J. F. Jameson and A. C. McLaughlin and reprinted in 
Debates in the Federal Convention of 1787 (ed. by Gaillard Hunt and James Brown 
Scott, 1920), pp. 596-598. 



390 THE PREAMBLE AND CONGRESS 

or importation of slaves ; fourth, against capitation 
taxes unless in proportion to the census ; fifth, against 
navigation acts unless passed by assent of two thirds 
of each House ; sixth against grant of titles of nobility 
(the latter also appearing in the Articles of Confed- 
eration) . 

Having thus specified the powers granted and also 
those prohibited to Congress, the Report proceeded to 
set forth in Article IX powers granted exclusively to 
the Senate. In Article X, it set forth the powers of the 
Executive. Here again, it borrowed largely from the 
State Constitutions of New York and Massachusetts. 
It named the Chief Executive "The President" of 
the United States that being the title given to the 
Chief Executive of the States of Pennsylvania, Dela- 
ware, New Jersey, and New Hampshire, as well as to 
the presiding officer of the Congress under the Articles 
of Confederation. In Article XI, relating to the 
Judiciary, the Committee again made an entire and 
radical change from the provisions voted theretofore 
by the Convention. Instead of the broad and almost 
unlimited jurisdiction voted, viz., to extend to "cases 
arising under laws passed by the General Legislature ; 
and to such other questions as involved the National 
peace and harmony", the Committee now set forth 
eight specific subjects of jurisdiction, in three of which 
the Supreme Court was given original jurisdiction, and 
in all others appellate. Some of these subjects were 
taken from Pinckney's Plan of May 29, and some from 
Paterson's Plan of June 15 ; but some had not been 
mentioned in either of those Plans. 

Still another radical change from the votes thereto- 
fore adopted by the Convention was made by the 
Committee, by inserting two Articles (XII and XIII) 
containing prohibitions on the powers of the States, 
including not only such restrictions as had appeared 



TUESDAY, AUGUST 7, 1787 391 

in the Articles of Confederation, but also new State 
prohibitions, viz., against coining money; grant of 
letters of marque and reprisal; emission of bills of 
credit or making anything but specie a tender in pay- 
ment of debts ; laying of imposts or duties on imports. 
So radical a departure from the old Articles of Con- 
federation as was embodied in this Report evidently 
amazed the delegates, and an attempt was made, 
unsuccessfully, to adjourn until Wednesday "in order 
to give leisure to examine the Report." l 

OUT OF CONVENTION 
Washington noted : 

"Met according to adjournment in Convention, and 
received the Rept. of the Committee. Dined at Mr. Mor- 
ris's and drank tea at Mr. Meredith's." 

TUESDAY, AUGUST 7, 1787 

IN CONVENTION 
The Preamble 

On this day, the Convention proceeded to take up 
the Report of the Committee of Detail, section by 
section. There was little occasion for debate over 
Article I, that "the stile of the Government shall be 
'The United States of America.'" The name "United 
States of America" was, of course, that which appeared 

1 J. F. Jameson in Studies in the History of the Federal Convention of 1787, Amer. 
Hist. Ass. Report (1902), I, states that the Committee of Detail took from Pater- 
son's Plan the proposals as to duties on exports, "regulation of trade and commerce 
as well with foreign nations as with each other " ; uniform rules of naturalization, 
Executive power over the military, Federal Court power over cases involving 
Ambassadors, and the provision for return of fugitives from justice. And Jameson 
states that nineteen or twenty of the provisions contained in the Pinckney Plan which 
were not contained in the Virginia Plan Resolutions as adopted were to be found in 
the Report of the Committee of Detail " Taken together they constitute a note- 
worthy contribution for the youngest delegate to have made. ... As a maker of 
the Constitution, Charles Pinckney deserves to stand higher than he has stood of 
late years and ... he would have a better chance of doing so, if in his old age he 
had not claimed so much." 



392 THE PREAMBLE AND CONGRESS 

in the Articles of Confederation, where it appeared as 
"the stile of this Confederacy." In the final draft made 
by the Committee of Style on September 12, this 
provision disappeared as a separate Article and was 
embodied in a new Preamble. There was also no 
occasion for debate over Article II, that "the Govern- 
ment shall consist of supreme Legislative, Executive 
and Judicial powers." For all the delegates had agreed 
on this provision as a fundamental part of any new 
Constitution, and even of any amendment of the old 
Articles of Confederation. These Articles were at once 
adopted, as well as Article III, that the Legislative 
power should be vested in Congress "to consist of two 
separate and distinct bodies of men, a House of Repre- 
sentatives and a Senate." This provision was one of 
the fundamental concepts of the new form of Govern- 
ment and had been already thoroughly debated and 
accepted, though some delegates still remained be- 
lievers in a single-chamber Legislature. 

The wording of the Preamble, though it was never 
discussed by the Convention, deserves some attention. 
Randolph's first draft of a Constitution submitted to 
the Committee of Detail had opened with the following 
suggestion : 

"In the draught of a fundamental Constitution two things 
deserve attention. 1. To insert essential principles only, 
lest the operation of government should be clogged by 
rendering those provisions permanent and unalterable 
which ought to be accommodated to times and events. 
2. to use simple and precise language, and general 
propositions, according to the example of the Constitu- 
tion of the several States." 

Randolph had then proceeded to state his ideas of 
what a Preamble should contain : 

"A Preamble seems proper, not for the purpose of desig- 
nating the ends of government and human politics. This 



TUESDAY, AUGUST 7, 1787 393 

display of theory, however proper in the first formation of 
State Governments, is unfit here; since we are not work- 
ing on the natural rights of men not yet gathered into so- 
ciety, but upon those rights modified by society and inter- 
woven with what we call the rights of States, nor yet is 
it proper for the purpose of mutually pledging the faith 
of the parties for the observance of the Articles. This 
may be done more solemnly at the close of the draft as in 
the Confederation. But the object of our Preamble ought 
to be briefly, to declare that the present Foederal Govern- 
ment is insufficient to the general happiness, that the con- 
viction of this fact gave birth to this Convention, and that 
the only effectual mode which they can devise for curing 
this insufficiency is the establishment of supreme Legis- 
lative, Executive and Judiciary. Let it be next declared 
that the following are the Constitution and fundamentals 
of Government for the United States." 

The Preamble as finally drafted by the Committee 
of Detail, was much simpler and shorter than Ran- 
dolph proposed. It began, "We, the people of the 
States of New Hampshire, Massachusetts, Rhode 
Island", etc., and ended, "do ordain, declare, and 
establish the following Constitution for the Govern- 
ment of Ourselves and our Posterity." l This wording 
should be contrasted with the Articles of Confederation, 
which had begun with the words: "Articles of Con- 
federation and perpetual Union between the States of 
New Hampshire, Massachusetts Bay, Rhode Island ", etc. 

When, at the close of the Convention, the Com- 
mittee of Style appointed to prepare a final draft of 
the Constitution made its Report on September 1, 
it entirely changed the phraseology of the Preamble. 

1 This phraseology was taken from the Preamble of the Constitution of Massa- 
chusetts of 1780, drafted by John Adams as follows : " We, the people of Massachu- 
setts ... do ... ordain and establish the following ... as the Constitution of 
the Commonwealth of Massachusetts." See also the Pennsylvania Constitution 
of 1776. The New York and Georgia Constitutions contained the words "ordain 
and declare/' 



394 THE PREAMBLE AND CONGRESS 

The words, "We, the people of the States of New 
Hampshire", etc., became, "We, the people of the 
United States." The final clause, "declare and 
establish the following Constitution for the Govern- 
ment of Ourselves and our Posterity", became "do 
ordain and establish this Constitution for the United 
States of America." Between these two clauses, there 
was then inserted a statement of the purpose of the 
Constitution, taken from the first Resolution of Ran- 
dolph's Plan of May 29, as follows: "Resolved, that 
the Articles of Confederation ought to be so corrected 
and enlarged as to accomplish the objects proposed by 
their institution, namely, * common defence, security 
of liberty, and general welfare' ", which in turn had 
been taken from Article III of the Articles of Con- 
federation averring the purpose of that "league of 
States" to be "for their common defence, the security 
of their liberties and their mutual and general welfare." 
In the Report of the Committee of Style of September 
12, this part of the Preamble became: "in order to 
form a more perfect union, to establish justice, insure 
domestic tranquillity, provide for the common defence, 
promote the general welfare, and secure the blessings 
of liberty to ourselves and our posterity." 

In later years, an attempt was made to attribute 
great significance to the change made by the Com- 
mittee of Style in substituting the phrase "We, the 
people of the United States", for the phrase, "We, the 
people of New Hampshire, Massachusetts, Rhode 
Island", etc. But this change was not intended by 
the Convention to be anything more than a matter of 
form. As the phrase was originally drafted, reciting 
the people of each of the thirteen States separately by 
name, it was then intended by the Convention that 
this new Constitution, before it should become effective, 
must be ratified by all the thirteen States, and that the 



TUESDAY, AUGUST 7, 1787 395 

requirement of the Articles of Confederation for unan- 
imity of States on any Amendment should be complied 
with, this new Constitution being regarded in the light 
of such an amendment. But when, on August 31, the 
Convention decided that the new Government should 
go into operation upon ratification of the Constitution 
by nine out of the thirteen States, such action made it 
necessary to eliminate from the Preamble the names 
of the specific States ; for it could not be known, at 
the date of the signing of the Preamble and the rest of 
the Constitution by the delegates, just which of the 
thirteen States would ratify. Hence, the language, 
"We, the people of the United States", was used, the 
meaning being, "We, the people of the States united", 
i.e., the people of those States which should agree to 
unite, by ratifying the new Constitution. "No other 
intent was suggested or contemplated" by this change 
of language. 1 The idea that "We, the people of the 
United States" was intended to mean the people, as a 
whole, of the country known as the United States of 
America, irrespective of the States of which the people 
were citizens, was an idea which did not enter the heads 
of the delegates at the time. Such a theory was later 
developed by Daniel Webster in the great struggle for 
the maintenance of National Union, in the Nullification 
era of the 1830's. The change in phraseology, however, 
was seized on by opponents of the adoption of the 
Constitution in some of the State Conventions in 1788 
notably in that of Virginia, when Patrick Henry, at 
the very outset, exclaimed : 

"That this is a consolidated Government is demonstrably 
clear, and the danger of such a Government is, to my mind, 

1 See esp. Commentaries of the Constitution (1895), by Roger Foster, I, 43, 94. 

The phrase in the Preamble "the people of the United States" was intended to 
be synonymous with the phrase in Article I, section 2, of the Constitution as finally 
drafted: "The House of Representatives shall be composed of Members chosen 
every second year by the People of the several States." 



396 THE PREAMBLE AND CONGRESS 

very striking. I have the highest veneration for those gen- 
tlemen ; but, sir, give me leave to demand : what right had 
they to say, We, the people? Who authorized them to 
speak the language: We, the people, instead of, We, the 
States?" 

And again, he referred to the framers of the Con- 
stitution as seeking to require the assent of the people 
in their collective capacity, thus making a consolidated 
Government. 1 His objection was completely answered 
by Henry Lee, who said : 

"If this were a consolidated Government, ought it not 
to be ratified by a majority of the people as individuals, 
and not as States ? Suppose Virginia, Connecticut, Massa- 
chusetts, and Pennsylvania had ratified it, these four States, 
being a majority of the people of America, would, by their 
adoption, have made it binding on all the States, had this 
been a consolidated Government. But it is only the Gov- 
ernment of those seven States, who have adopted it. If 
the honorable gentleman will attend to this, we shall hear 
no more of consolidation." 

And Madison authoritatively declared the real meaning 
of the words : 

"Who are parties to it? The people but not the 
people as composing one great body ; but the people as 
composing thirteen sovereignties. . . . Should all the 
States accept it, it will be then a Government established 
by the thirteen States of America, not through the inter- 
vention of the Legislatures, but by the people at large." 

OUT OF CONVENTION 
Washington noted : 

"In Convention. Dined at Mr. Morris's, drank tea 
no where, and spent the evening (at home) there also." 

1 Elliot's Debates, III, Henry, p. 22; Lee, p. 180; Madison, p. 94. Edmund 
Pendleton had said (p. 37) : '"Permit me to ask the gentleman who made the objec- 
tion : Who but the people can delegate powers ? Who but the people have a right 
to form government?" 



TUESDAY, AUGUST 7, 1787 397 

Renewed evidence appeared, this day, that the real 
line of division in the Convention was between the 
South and the North between the shipping and 
commercial States who might be interested to impose 
restrictions on foreign imports and shipping, and the 
exporting States who desired unrestricted commerce. 
James McHenry of Maryland recorded in his Notes a 
description of a conference and discussion held by the 
delegation from that State at the lodgings of Daniel 
Carroll. At this meeting, Carroll and McHenry agreed 
"that the deputation should oppose a resolute face" 
to the section granting to the House the sole power to 
originate money bills, as it "gave to that branch an 
inordinate power in the Constitution which must end 
in its destruction," since without equal powers the 
House and Senate "were not an equal check upon 
each other." It was also "accorded that the deputa- 
tion should in no event consent" to the clause as to 
navigation acts, since "the dearest interests of trade" 
might be placed under the control of four States. 
As to the clause giving Congress power to regulate 
commerce, "we almost shuddered at the fate of the 
commerce of Maryland, should we be unable to make 
any change in this extraordinary power. We agreed 
that our deputation ought never to assent to any article 
in its present form." The delegates also decided to 
oppose the mode of ratification of the Constitution by 
State Conventions, suggested by the Committee of 
Detail, on the ground that it violated the provision of 
the State Constitution. They also were apprehensive 
of the broad powers of taxation proposed to be vested 
in the new Government; for, said McHenry, "an 
increase of taxes, and a decrease in the objects of taxa- 
tion as they respected the revenue for the State, would 
not prove very palatable to our people, who might 
think that the whole objects of taxation were hardly 



398 THE PREAMBLE AND CONGRESS 

sufficient to discharge the State obligations. Mr. 
Mercer came in and said he would go with the deputa- 
tion on the points in question. He would wish it to 
be understood, however, that he did not like the 
system, that it was weak that he would produce a 
better one, since the Convention had undertaken to 
go radically to work, that perhaps he would not be 
supported by any one, but if he was not, he would go 
with the stream." It appeared that Jenifer of the 
delegation was the only enthusiastic supporter of the 
Constitution, as it then stood ; and McHenry reports 
that when Luther Martin "said one day in company 
with Mr. Jenifer, speaking of the system before the 
Convention, 'I'll be hanged if ever the people of Mary- 
land agree to it ' 'I advise you, ' said Jenifer, ' to 
stay in Philadelphia, lest you should be hanged.'" 

The Gazetteer published, this day, a letter "from a 
Gentleman in one of the most Southern States" evi- 
dencing the feelings towards the Convention : 1 

"The eyes of the whole continent are now cast on that 
respectable body, the Convention. The heart of every 
American, good or bad, must be interested in the result 
of their deliberations. It will either form a glorious epoch 
in the history of America, or by doing nothing, leave the 
disease to the violent remedy of curing itself. I hope 
Rhode Island is no bar to their proceedings. Whenever 
I think of that petty State, it brings to my recollection a 
saying of the Grand Signior respecting the small States 
of Holland that if they gave him as much trouble as they 
did the King of Spain he would send his men with shovels 
and pickaxes and throw them all into the sea. Do you 

1 Widely republished, see Pennsylvania Journal, Aug. 8 ; Pennsylvania Gazette, 
Aug. 8 ; Freeman's Journal, Aug. 8 ; New York Daily Advertiser, Aug. 11 ; Con- 
necticut C our ant, Aug. 0, 1787 ; and other papers. 

The Independent Gazetteer, Aug. 6, 1787, had quoted similar sentiments from a 
letter of a "well-meaning, plain citizen" in the New York Daily Advertiser saying 
that "the wisdom of the continent is now, as it were, concentered in the present 
Convention met to deliberate on the best mode of consolidating our Federal Gov- 
ernment." 



WEDNESDAY, AUGUST 8, 1787 399 

think by such a measure the Union would suffer ? I would 
send what few negroes I have, with all my heart, and fur- 
nish them with tools at my own expense." 

The North Carolina Delegates wrote this day to 
Governor Caswell : l 

"The Convention, having on the 26th of last month 
finished the outline of the Amendments proposed to the 
Federal system, the business was of course committed for 
detail, and we have the pleasure to inform your Excel- 
lency that the report was received on yesterday. From 
the progress which has already taken up near three months, 
we are induced to believe the result of our deliberations 
will shortly be presented to the United States in Congress, 
and as they are only to consider whether the system shall 
or shall not be recommended to the States, the business 
cannot remain long before them." 

WEDNESDAY, AUGUST 8, 1787 

IN CONVENTION 
Qualifications for Voters 

On this day the Convention settled the qualifications 
which should be required for voters in the election 
of Members of the House of Representatives. The 
Committee of Detail, in its Report, had provided that 
the qualifications of electors for the House of Repre- 
sentatives "shall be the same, from time to time, as 
those of the electors in the several States, of the most 
numerous branch of their own Legislatures." When 
taken up first, on August 7, considerable discussion arose 
over this very wise and far-sighted provision. It would 
have been impossible to devise any uniform qualifi- 
cations for electors which would have satisfied all the 
States ; for the provisions already existing in the State 
Constitutions were very diverse. Every State required 

1 North Carolina Records, XX, 733, the date being erroneously given on July 7, 
1787. 



400 THE PREAMBLE AND CONGRESS 

a certain length of residence; Maryland and Virginia 
excluded free negroes ; all the States required an elector 
to own a certain amount of property, except Pennsyl- 
vania, Georgia, and New Hampshire which allowed 
taxpayers to vote. The property qualifications varied 
greatly ; some States required him to own freehold in 
a certain number of acres, or in land paying a certain 
income ; New Jersey required ownership of fifty pounds 
of property of any kind. 1 Freehold in fifty acres was 
the maximum qualification as to land ; and ownership 
of sixty pounds' worth of other property, the maximum 
as to personalty. It has been estimated that about 
one fifth of the adult white males possessed no vote. 2 
But it should be noted, however, that the operation of 
a property qualification in those days was different 
from what it would be today. The population then 
comprised only the following classes : first, the farmers, 
frontiersmen, and planters who formed the greatest 
single class, but almost all of whom owned land, even 
if they had no other property ; second, the craftsmen 
and mechanics who largely worked on their own 
business ; third, the mercantile interest composed of 
shopkeepers and their clerks ; fourth, the commercial 
interest, most of whom were shipowners or importers 
or exporters ; fifth, the shipbuilding interest ; sixth, 
apprentices, domestic servants, and farm laborers; 
seventh, the lawyers, doctors, and clergymen. There 

1 See table of qualifications of electors in Constitutional History of the American 
People (1898), by Francis N. Thorpe, I, 93, 96; and in The History of the United 
States (1912), by Edward Channing, III, 446. 

2 See An Economic Interpretation of the Constitution (1913), by Charles A. Beard, 
pp. 140-142 : " . . . It is impossible to say just what proportion of the adult males 
twenty-one years of age was disfranchised by these qualifications. When it is 
remembered that only about three per cent, of the population dwelt in towns of 
over 8000 inhabitants in 1790, and that freeholders were widely distributed, espe- 
cially in New England, it will become apparent that nothing like the same proportion 
was disfranchised as would be today under similar disqualifications. Dr. Jameson 
esti mates that probably one fifth of the adult males were shut out in Massachusetts, 
and it would probably be safe to say that nowhere were more than one third of the 
adult males disfranchised by the property qualification." 



WEDNESDAY, AUGUST 8, 1787 401 

were no manufacturing employees, no railroad or other 
public utility employees, no municipal and State 
employees. There were few farm laborers (other than 
slaves) not owning lands. To many of those included 
in the above seven categories, the small amount of 
property required as a qualification for voting in most 
of the States had not proved a serious burden. But 
a proposal now made in the Convention for a qualifi- 
cation to vote for Members of Congress, would, if 
adopted, have produced a considerable discrimination 
and worked a grave injustice. G. Morris proposed 
"to leave it to the State Legislatures to establish the 
qualifications of the electors and elected, or to add a 
clause giving to the National Legislature power to alter 
the qualifications." To this, Ellsworth objected that 
"if the (National) Legislature can alter the qualifi- 
cations, they can disqualify three fourths or a greater 
proportion of the electors this would go far to create 
aristocracy. The clause is safe as it is the States 
have staked their liberties on the qualifications which 
we have proposed to confirm"; 1 and said he, "the 
States are the best judges of the circumstances and 
temper of their people." Wilson also said that "it 
would be difficult to form any uniform rule of 
qualification for all the States." It was then suggested 
by G. Morris to confine the electors to freeholders, i.e., 
to persons owning land. Dickinson also favored this 
proposal, considering such a provision to be "a 
necessary defence against the dangerous influence of 
those multitudes without property with which our 
country like all others will in time abound." G. 
Morris was afraid that if the vote was given to people 
with no property they would sell their vote to the rich 
and thus increase the power of the rich, and, said 
he, "the ignorant and the dependent can be as little 

1 As reported in King's Notes. 



402 THE PREAMBLE AND CONGRESS 

trusted with the public interest." On the other hand, 
Wilson, Ellsworth, Mason, Butler, and Gorham were 
opposed to confining the electors to freeholders. They 
pointed out that the people would not adopt the new 
Constitution if it should subject them to be disfran- 
chised. "The people have been long accustomed to 
this right in various parts of America, and will never 
allow it to be changed," said Gorham. "We must 
consult their rooted prejudices if we expect their 
concurrence." Gorham also pointed out that a re- 
quirement of freehold would operate against mechanics 
and merchants. Mason said that "every one who is 
of full age and can give evidence of his common interest 
in the community should be an elector" ; and Ellsworth 
said that "the rule should be that he who pays and is 
governed should be an elector; virtue and talents are 
not confined to the freeholders." l Madison thought 
that the right of suffrage was so fundamental a part 
of Republican Government that it ought to be regulated 
by the Constitution rather than be left to the Legis- 
latures which might restrict it to freehold owners ; 2 
and he was inclined to favor different qualifications 
for voting for the two branches of the Legislature, so 
as to provide reasonable security for both persons and 
property, each being an essential object of Govern- 
ment. 3 Finally, Doctor Franklin, always liberal in 
spirit, said that : "It is of consequence that we should 
not depress the virtue and public spirit of our common 
people. . . . This class possess hardy virtues and 

1 As reported in King's Notes. 

2 Madison, previously, on July 26, had concurred with G. Morris in thinking 
that a qualification as to property was more suitable to be required of the electors 
than of the elected ; but he realized the difficulty of establishing any uniform stand- 
ard that would satisfy all the States. 

8 The Debates in the Federal Convention of 1787, ed. by Gaillard Hunt and James 
Brown Scott, Appendix, p. 619. Madison, later in life, modified his views and wrote 
that "it seems indispensable that the mass of citizens should not be without a voice 
in making the laws which they are to obey and in chusing the magistrates who are 
to administer them." Ibid, p. 623. 



WEDNESDAY, AUGUST 8, 1787 403 

great integrity." * When the vote was taken, G. 
Morris' proposal to confine electors to freeholders was 
defeated; and the Committee's proposal was then 
adopted without dissent, on August 8, and thus the 
Convention declined to establish any special form of 
property as a necessary qualification of those who were 
to elect the Congress. It is fair to point out, however, 
that this rejection of possession of freehold as a qualifi- 
cation was not entirely the result of an opposition to 
property qualifications per se; for it was perceived by 
many that such action would exclude owners of other 
kinds of property (merchants and security holders) 
from voting and would subject their interests to attacks 
from the small farmers who were freeholders but who 
at the same time were the advocates of paper money 
and similar destructive forms of legislation. 2 

The result of the Convention's action, however, was 
to avoid discriminating for or against any particular 
class of property owner and to leave the whole matter 
of qualification of voters to regulation by each State 
for itself. If the States in whose Legislatures the small 
farm owners had a large representation were content 
to exclude other classes of men from the suffrage, the 
Convention was content to abide by their decision. 

OUT OF CONVENTION 
Washington noted : 

"In Convention. Dined at the City Tavern and re- 
mained there till near ten o'clock." 

1 As reported in King's Notes. 

2 Charles A. Beard said in his An Economic Interpretation of the Constitution, p. 
71 : "While these qualifications operated to exclude a large portion of the adult 
males from participating in elections, the wide distribution of real property created 
an extensive electorate, and in most rural regions gave the Legislatures a broad 
popular basis. Far from rendering to personal property that defence which was 
necessary to the full realization of its rights, these qualifications for electors 
admitted to the suffrage its most dangerous antagonist, the small farmers and many 
of the debtors who were the most active in all attempts to depreciate personalty by 
legislation. Madison with his usual acumen saw the inadequacy of such defence 
and pointed out to the Convention that the really serious assaults on property 
(having in mind of course personalty) had come from the freeholders." 



404 THE PREAMBLE AND CONGRESS 

The Herald said that: "On Monday last, the 
Foederal Convention met after their short adjourn- 
ment . . . and we are told that they are now debating 
by paragraphs the plan which is to be submitted for 
public consideration." 

On this day, there appeared the first notice in the 
newspapers of any opposition to the work of the 
Convention in any State outside of New York. It 
now appeared that in Pennsylvania some leaders of the 
party known as the Constitutionalists the party 
which favored its old State Constitution with its 
single Legislative chamber and lack of independent 
Executive or Judiciary were preparing to attack the 
proposed new Federal Constitution as destructive of the 
powers of the State. The Gazetteer said : 

"We hear that a certain party have lately had sundry 
meetings at the houses of George Bryan and Jonathan 
Bayard Smith and that a large collection of pamphlets 
have been circulated from these meetings through the 
State. It is said the design of these publications is to 
excite prejudices against the new Federal Government 
and thereby prevent its adoption by this State. It is to 
be hoped this pampered official family will be disappointed, 
for it is a fact that a great proportion of the Constitutional 
party are friendly to the present Convention, especially to 
its worthy and excellent head. Jonathan Bayard Smith, 
it is said, receives 2000 pounds from his office and his brother- 
in-law, George Bryan, 600 pounds." 

The announcement of the gathering of this opposition 
brought forth, four days later, in the Gazetteer (August 
12) an indignant letter from "Tar and Feathers ", who 
said : 

"Your paper of the eighth instant informs the public 
that a system of opposition is beginning to the new Federal 
Constitution in the Supreme Court of two gentlemen who 
are at the head of the Constitutional party. How men 



WEDNESDAY, AUGUST 8, 1787 405 

can oppose what they have never seen nor know nothing 
about, I cannot tell. But if it is really true that these men 
are at work to defeat the good intended for this country 
by a Continental Government, before they see it then 
all they will say, after it is made public, should go for noth- 
ing. It would be well for these men to think of the fate 
of Hutchinson, Tryon, Galloway and other Crown officers, 
who lost their offices and estates by opposing the general 
inclinations of the people. It would be prudent in the 
Honorable Judge to think of the fate of Carlisle and 
Roberts, who lost their lives by his hand for acting con- 
trary to the sentiments of a majority of the good people 
of Pennsylvania. Times are critical. Our laborers are 
distressed for want of work. Our trade is dull and our 
farmers are torn to pieces for taxes. Under these circum- 
stances, is it not cruel for men who are revelling in the 
sweets of fat offices to try to prevent the Government of 
the Convention, which shall put everything to rights, from 
having fair play among us ? " 

A Georgia paper was quoted in Freeman's Journal 
this day, as saying that "at present, one of the chief 
pillars of a Republican Government is wanting with the 
Americans the principle of cohesion ; and this arises, 
not only from the defects of their Constitutional system, 
but from the nature of their local situation." Signs 
that, in Massachusetts also, the fears of the emphatic 
adherents to State Sovereignty were being aroused, 
may be seen from an article in the Salem Mercury 
(August 7), announcing mistakenly, that the Con- 
vention had unanimously agreed on its new plan of 
Government : 

"It is said, the Federal Convention have unanimously 
agreed on a scheme of Continental Government, adapted 
to the circumstances, habits, and necessities of the people, 
and which will speedily be presented to the several Legis- 
latures for their acceptance and ratification. The prin- 
cipal difficulty will now be to have it freely adopted by 



406 THE PREAMBLE AND CONGRESS 

the people. And on this account, we should have nothing 
to apprehend, were it not that some people, for some rea- 
son or another, have started objections to giving power 
out of their hands, as they term it, lest the liberties of the 
people be endangered. It hath unhappily been the case, 
when measures have been proposed in the Assemblies of 
the States evidently calculated for the benefit of individual 
and confederate States, for some to mount the political 
hobby horse and set up the cry of Liberty ! On these 
occasions, we frequently hear of our forefathers coming 
to this howling wilderness for liberty, and, if we grant 
money or power to Congress, our liberties will be in dan- 
ger that Congress are profuse, etc. It is undoubtedly 
the duty of a free people to be tenacious of their liberties 
and guard against encroachments. But does it follow 
that we should be suspicious of every publick measure, 
or publick character? The suggestions that it would be 
dangerous to grant money or power to Congress, or to estab- 
lish a National Government adequate to National purposes, 
are unmanly and unreasonable." 

The Gazette, this day, pointed out that a leading 
source of opposition to the new Constitution would be 
found in the State officials whose powers might be 
lessened, "upwards of 2000 men being employed in the 
Legislative parts of our 13 Governments and ten times 
that number in Executive." 

"Besides the expence of this little army of rulers, their 
wisdom decreases in proportion as their numbers increase. 
. . . These facts should prepare us to adopt the frugal 
and wise Federal Government which it is expected is now 
preparing for the United States. ... It will enable us to 
support government and pay our debts by imposts and 
excise, without unequal and oppressive land taxes which 
are so injurious to agriculture, and lastly it will extin- 
guish State parties which are so detrimental to social hap- 
piness. ... It is with singular pleasure we inform our 
readers that a Society is now forming in this city for the 



WEDNESDAY, AUGUST 8, 1787 407 

encouragement and establishment of useful arts and manu- 
factures, by which means the industrious poor will be em- 
ployed in our city, and arts and manufactures protected 
and rewarded in every part of the country. Until we manu- 
facture more, it is an absurdity to celebrate the Fourth of 
July as the birthday of our Independence. We are still a 
dependent people." 

To counteract the apparently growing sentiment in 
favor of the State Sovereignties as against a stronger 
Federal Government, a very able and exhaustive series 
of articles (over twenty in number) now began to 
appear in the newspapers of several States signed 
"A Foreign Spectator." Until the publication in the 
fall and winter of 1787-1788 of the papers entitled 
The Federalist* written by Jay, Madison, and Hamilton, 
these articles by "A Foreign Spectator" were the most 
effective and the most important arguments in behalf 
of the newly planned Government. The first article, 
published in the Gazetteer, August 6, 7, 8, was entitled 
"An Essay on the Means of Promoting Federal Senti- 
ments in the United States." 1 It said : 

" The people of a Federal Republic stand in the double 
relation, as citizens of a particular State and citizens of 
the United States; in the former they think and act for 
their respective Republics, in the latter for the whole 
Confederacy. As Federal subjects, it is their duty to pro- 
mote the general interest, to regard their own State only 
a member of the Union and to allow it only a just pro- 
portion. Those rights of the Federal Republic and of 
each particular State, which are defined by the Articles of 
Confederation, must be faithfully supported. The Fed- 
eral allegiance is supreme and obligates every person to 
be an enemy of his own State, if it should prove treach- 
erous to the Union. In cases not clearly defined by the 

1 See Independent Gazetteer, from August 6 to September 22, 1787 ; New York 
Daily Advertiser, from August 14 to October 25, 1787 ; and many other newspapers 
in the different States. 



408 THE PREAMBLE AND CONGRESS 

Constitution, or when the occasional surrender of a right 
is very beneficial to the Confederacy, or another State, a 
general condescension and a Federal affection are very 
salutary. In America, an excessive love of liberty and 
the novelty of a Federal Constitution combine to render 
great numbers averse from the so necessary and rational 
government of a Supreme Congress, though it has proved 
so worthy of the public trust." 

THURSDAY, AUGUST 9, 1787 

IN CONVENTION 
Congressional Elections 

A regulation with respect to the Congressional 
elections, adopted in the Convention on this day, gave 
rise to but slight debate ; though it became one of the 
chief causes for opposition to the Constitution on its 
submission to the States for ratification. 

The Committee of Detail had provided in its Report 
that: 

"The times and places and manner of holding the elec- 
tion of the members of each House shall be prescribed by 
the Legislature of each State; but their provisions con- 
cerning them may, at any time, be altered by the Legisla- 
ture of the United States." 

Madison and G. Morris thought that this provision 
ought at least to be confined to election of members 
of the House of Representatives ; since, as to the 
Senate, the right of the Legislatures to elect members 
of that body must necessarily include the right to 
regulate the times, places, and manner of election. 
The Convention, however, did not concur with this 
view. Charles Pinckney and Rutledge moved to reject 
the power of Congress to alter the provisions made by 
the States ; but Madison, Gorham, King, and G. 
Morris contended that such a power was absolutely 
necessary ; for as Madison said : 



THURSDAY, AUGUST 9, 1787 409 

"The necessity of a General Government supposes that 
the State Legislatures will sometimes fail or refuse to con- 
sult the common interest, at the expense of their local con- 
veniency or prejudices. . . . The Legislatures of the 
States ought not to have the uncontrouled right of regu- 
lating the times, places and manner of holding elections. 
These were words of great latitude. It was impossible 
to foresee all the abuses that might be made of the discre- 
tionary power. ... It seemed as improper in principle 
... to give over the election of the Representatives of 
the people in the General Legislature, as it would be to give 
to the latter a like power over the election of their Repre- 
sentatives in the State Legislatures." 

The Convention supported Madison's view. Read 
of Delaware then suggested an amendment to vest in 
Congress the power "not only to alter the provisions 
of the States, but to make regulations in case the States 
should fail or refuse altogether", and this was adopted. 
In the closing sessions, on September 14, the Con- 
vention voted to add at the end of this section the 
words "except as to the places of choosing Senators", 
in order to "exempt the seats of Government in the 
States from the power of Congress" ; and thus it was 
made impossible for Congress to require a State Legis- 
lature in electing Senators to convene at any other 
place than that fixed by the Legislature itself. The 
provisions on this whole subject, as finally adopted, are 
now contained in Article I, section 4, of the Constitution, 
as follows : 

"The times, places and manner of holding elections for 
Senators and Representatives, shall be prescribed in each 
State by the Legislature thereof ; but the Congress may 
at any time by law make or alter such regulations, except 
as to the places of chusing Senators." 

From the slight debate in the Convention, it would 
appear that the delegates did not realize the great 



410 THE PREAMBLE AND CONGRESS 

extension of authority over the States which was thus 
given to the National Government. In the contests in 
the State Conventions of 1788, however, this provision 
was made one of the principal objects of attack upon 
the Constitution ; and as Luther Martin (who was 
absent in New York on this day) said later, in his report 
to the Maryland Legislature, it was regarded as "a 
provision expressly looking to, and I have no doubt 
designed for, the utter extinction and abolition of all 
State Governments." 1 

One other provision regarding the Senate, made by 
the Committee of Detail in its Report, aroused some 
discussion on this August 9, viz. that: " Vacancies 
may be supplied by the Executive until the next meet- 
ing of the Legislature." Wilson urged that this was 
not only unnecessary, but also that "it removes the 
appointment too far from the people, the Executives 
in most of the States being elected by the Legislatures." 
He thus once more evinced his devotion to popular 
government; for, he said, he had "always thought the 
appointment of the Executive by the Legislative 
department wrong; so it was still more so that the 
Executive should elect into the Legislative depart- 
ment." His objection, however, met with no support. 
Madison then moved to amend so as to provide that : 

"Vacancies happening by refusals to accept, resigna- 
tions or otherwise may be supplied by the Legislature of 
the State in the representation of which such vacancies 

1 Elliot's Debates, I, 361. A letter by "Cornelius" in the Hampshire Gazette 
(Mass.) Dec. 11, 18, 1787, gives a good idea of the fears as to this clause: "This 
power being vested in the Congress may enable them, from time to time, to throw 
the elections into such particular parts of the several States where the dispositions 
of the people shall appear to be the most subservient to the wishes and views of that 
honorable body. . . . Should it so happen (as it probably will) that the major part 
of the Members of Congress should be elected in and near the seaport towns, there 
would in that case naturally arise strong inducements for fixing the places for hold- 
ing elections in such towns or within their vicinity. This would effectually exclude 
the distant parts of the several States, and the bulk of the landed interest, from an 
equal share in that government in which they are deeply interested." 



THURSDAY, AUGUST 9, 1787 411 

shall happen, or by the Executive thereof, until the next 
meeting of the Legislature." 

This amendment was accepted by the Convention, 
and, in altered phraseology, it appears in the final draft 
of the Constitution, as Article I, section 3, clause 2 : 

"And if vacancies happen by resignation, or otherwise, 
during the recess of the Legislature of any State, the Ex- 
ecutive thereof may make temporary appointments until 
the next meeting of the Legislature, which shall then fill 
such vacancies." 



OUT OF CONVENTION 
Washington noted : 

"In Convention. Dined at Mr. Swan wick's and spent 
the afternoon in my own room, reading letters and accts. 
from home." 

The Gazetteer published a letter from Petersburgh, 
Virginia, in support of the Convention : 

"Let there be generous and candid concessions, free 
from local prejudices, such as shall support and maintain 
on a liberal scale the government and dignity of the Em- 
pire. Let Congress be vested with an independent power 
over the States, without violating the religious tenets or 
customs of any particular State or in the quiet enjoyment 
of such territory or rights as shall be ascertained by the 
general establishment. Let the States yield to Congress 
the power of regulating our commerce, that by a uniform 
system we may preserve a genuine alliance of mutual friend- 
ship and free intercourse of trade with each other. But I 
forbear. The Grand Federal Convention, it is hoped, 
will act wisely ; for on their determination alone, and our 
acquiescence, depends our future happiness and prosperity, 
and if there lives a man, equal to so arduous a task, it is a 
Washington." 



412 THE PREAMBLE AND CONGRESS 

FRIDAY, AUGUST 10, 1787 

IN CONVENTION 
Qualifications of Members of Congress 

Having, on August 8, agreed upon the section 
regulating the qualifications of those who were to vote 
for members of Congress, and having voted against 
requiring possession of freehold in land as a qualification, 
the Convention now, on this day, settled the qualifi- 
cations to be possessed by Representatives and Sen- 
ators. Its action was a striking example of liberal 
and democratic views, and in contrast to the con- 
servative provisions in the State Constitutions; for 
those Constitutions, adopted between 1776 and 1784, 
required not only religious and residential but also 
property qualifications. 1 

When Randolph introduced his Resolutions on May 
29, they provided for no qualification except that 
of age. In the Committee of the Whole, on June 12, 
a minimum age of thirty years was fixed for the Senate, 
but no limit for the House. When the Convention had 
discussed the Committee's Report, on June 22, Mason 
moved that twenty-five years be required as an age 
qualification for members of the House. "His political 
opinions at the age of twenty-one, " said he, "were 
too crude and erroneous to merit an influence on 
public measures. It had been said that Congress had 
proved a good school for our young men. It might 
be so, for anything he knew ; but if it were, he chose 
that they should bear the expence of their own edu- 
cation." 2 Wilson said that he was against "abridg- 
ing the right of election in any shape", that the motion 

1 See tables in Constitutional History of the American People (1898), by Francis 
N. Thorpe, I, 70-77; History of the United States (1912), by Edward Channing, III. 

2 It is to be noted that in the English Parliament, twenty-one years was the age 
qualification ; though Fox, Shaf tesbury, and others actually sat at nineteen years of 
age. 



FRIDAY, AUGUST 10, 1787 413 

"tended to damp the efforts of genius and of laudable 
ambition" ; and he cited the signal services of Pitt and 
Lord Bolingbroke in the public service before the age 
of twenty-five. Mason's motion, however, was carried. 
On June 25, the Convention had agreed without 
dissent to the thirty year age qualification for Senators. 
It may be noted that under the New Hampshire and 
South Carolina State Constitutions, there was a thirty 
year age qualification for Senators ; in the other States, 
in general, twenty-five years. The Committee of De- 
tail, in its Report, made no change in the age require- 
ments ; and the Convention adopted them on August 8. 

The Committee did, however, provide for two ad- 
ditional qualifications United States citizenship for 
three years for a member of the House ; and four years, 
for a Senator ; also residence within the State for which 
each should be chosen. In establishing these qualifi- 
cations the Committee followed the requirements of 
the State Constitutions then in force. For a State 
Representative, South Carolina required residence of 
three years ; Pennsylvania and New Hampshire, two 
years ; Massachusetts, New Jersey, Maryland, North 
Carolina, and Georgia, one year ; Delaware and Vir- 
ginia unspecified terms of residence in the county ; 
New York, no provision. For a State Senator, New 
Hampshire required residence of seven years ; Massa- 
chusetts and South Carolina, five years ; Maryland, 
three years ; New York, New Jersey, North Carolina, 
one year ; Delaware and Virginia prescribed no definite 
time ; Pennsylvania and Georgia had no Senate. 

When the requirements proposed by the Committee 
of Detail were debated on August 8, considerable fear was 
evinced by the delegates lest the doors of office should 
be too readily opened to foreigners ; and on motion of 
George Mason and G. Morris, it was voted to require 
seven years' citizenship for members of the House. 



414 THE PREAMBLE AND CONGRESS 

Considerable discussion arose on the question of 
residence. Sherman, Madison, and Wilson wished to 
substitute the word "inhabitant" for "resident." 
Madison thought that both terms were "vague", but 
that the latter was "least so in common acceptation, 
and would not exclude persons absent occasionally for 
a considerable time on public or private business." 
He stated that "great disputes had been raised in 
Virginia concerning the meaning of residence as a 
qualification of Representatives, which were determined 
more according to the affection or dislike to the man 
in question than to any fixt interpretation of the word." 
Mercer said that in Maryland also there had been 
violent disputes as to the meaning of the term "resi- 
dence." It was apparently felt that "resident" might 
imply physical presence, while "inhabitant" would 
signify simply legal domicile. Wilson thought it 
important that the expression used should not be so 
strict as to exclude persons who might be physically 
absent from their States attending sessions of Congress. 
Dickinson proposed that the requirement should be 
"inhabitant actually resident for [blank] years", as 
"this would render the meaning less indeterminate." 
Rutledge wished to provide for a previous residence of 
seven years within the State ; but Madison, in op- 
position, suggested that this might deprive the new 
States in the West of any representation, and Read 
and Mercer pointed out that such a provision "would 
interweave local prejudices and State distinctions in 
the very Constitution which is meant to cure them." 
Ellsworth and Dickinson thought that one year's 
residence would be sufficient. Mason thought seven 
years' residence too long but that the valuable prin- 
ciple should be maintained. "If residence be not 
required," said he, "rich men of neighboring States 
may employ with success the means of corruption in 



FRIDAY, AUGUST 10, 1787 415 

some particular district and thereby get into the public 
councils after having failed in their own State," as in 
the boroughs in England. A motion by Butler and 
Rutledge of South Carolina to require three years' 
"previous inhabitancy" was voted down; and so was 
a motion for one year's, made by Ellsworth and Mason. 
Accordingly, it was left, as it appears in Article I, 
section 2, of the final draft of the Constitution simply 
that "no person shall be a Representative . . . who 
shall not, when elected, be an inhabitant of that State 
in which he shall be chosen." 

On August 9, an attempt was made to require a 
longer term of citizenship for Senators than the four 
years proposed in the Report of the Committee of 
Detail. G. Morris proposed to make this fourteen 
years, saying: "As to those philosophical gentlemen, 
those citizens of the world as they call themselves, he 
owned he did not wish to see any of them in our pub- 
lic councils ; he would not trust them ; the men who 
can shake off their attachments to their own coun- 
try can never love any other ; these attachments are 
the wholesome prejudices which uphold all Govern- 
ments." 1 And Charles Pinckney and Pierce Butler 
supported him, on the ground that as the Senate was 
to "have the power of making treaties and managing 
our foreign affairs, there is peculiar danger and impro- 
priety in opening its doors to those who have foreign 
attachments." The reason for fixing the period at 
fourteen years was evidently to make it certain that 
the office should, at the outset of the Government at 
least, be confined to persons who had been here before 
the Revolution. The proposal, however, was strongly 
opposed. Ellsworth thought it would discourage "mer- 

1 According to the Notes of Rufus King, G. Morris said: "Foreigners cannot 
learn our laws or understand our Constitution under fourteen years. Seven years 
are requisite to learn to be a shoemaker, and double this term will be necessary to 
learn to be an American Legislator." 



416 THE PREAMBLE AND CONGRESS 

itorious aliens from emigrating to this country." 
Madison and Franklin also disliked giving such "a 
tincture of illiberality " to the new Constitution. 
Wilson, who had been born in Scotland, pointed out 
that he might be "incapacitated from holding a place 
under the very Constitution which he had shared in the 
trust of making" and said that "to be appointed to a 
place may be matter of indifference. To be incapable 
of being appointed is a circumstance grating and 
mortifying." Morris' motion for fourteen years' citi- 
zenship and General Pinckney's for ten years' were 
defeated, and finally nine years' was agreed to, after 
Williamson urged that, as the Convention had fixed 
seven years' for members of the House, it was more 
necessary to guard the Senate, in which "bribery and 
cabal can be more easily practiced", since its numbers 
would be so small. 1 

After voting on age and residence qualifications for 
members of Congress, the Convention was now con- 
fronted with a proposal on which its decision was of 
great significance. Almost all the State Constitutions 
required members of their Legislatures to possess 
considerable property. A State Senator was required 
in South Carolina to have a freehold of 2000 pounds in 
value ; in New Jersey and Maryland, 1000 pounds in 
real and personal property ; in Massachusetts, freehold 
of 300 pounds or 600 pounds in personal property ; in 
New Hampshire, freehold of 200 pounds; North 
Carolina, freehold of 800 acres ; in Virginia, Delaware, 
and New York, freehold of no limited amount. A 
State Representative was required in South Carolina 

1 On August 13, the Convention having voted to reconsider the question as to 
length of citizenship for Members of the House, James Wilson and Randolph moved 
to require four years instead of seven ; Madison also concurred ; Gerry and Pierce 
Butler, on the other hand, wished to confine eligibility to natives ; and Williamson 
wanted nine years. Wilson pointed out that of the Pennsylvania delegates, Robert 
Morris, Fitzsimmons, and himself were not natives. Wilson's attempt to lessen 
the citizenship requirements for both House and Senate were decisively defeated. 



FRIDAY, AUGUST 10, 1787 417 

to have 500 pounds in real estate ; in New Jersey and 
Maryland, 500 pounds real and personal; in New 
Hampshire, 100 pounds freehold ; in Massachusetts, 
100 pounds freehold or 200 pounds other property ; in 
Georgia, 250 acres or 250 pounds ; in Delaware and 
Virginia, a freehold of no limited amount ; in Pennsyl- 
vania, he must be a taxpayer ; New York alone had no 
property qualification. With these qualifications re- 
quired in the States, it would have been natural if the 
Convention had prescribed similar ones in the new 
Constitution. But, as will be seen, more liberal and 
democratic ideas prevailed. 1 Early in the sessions, on 
June 26, George Mason had suggested "the propriety 
of annexing to the office of Senator a qualification of 
property"; for Mason was one of a small group who 
thought that "one important object in constituting the 
Senate was to secure the right of property " a theory 
which was rejected by the Convention. On July 26, 
Mason had moved that "the Committee of Detail be 
instructed to receive a clause requiring certain qualifi- 
cations of landed property ... in members of the 
Legislature. . . ." Charles Pinckney and General 
Charles C. Pinckney had moved to extend these 
qualifications to both the Judiciary and the Executive. 
In the debate, Dickinson said that "he doubted the 
policy of interweaving into a Republican Constitution 
a veneration for wealth. He had always understood 
that a veneration for poverty and virtue were the 
objects of republican encouragement. It seemed im- 
proper that any man of merit should be subjected to 

1 Constitutional History of the United States (1901), by Francis N. Thorpe, I, 464. 
For a defense of property as the basis of government, see Proceedings and Debates 
of the Virginia State Convention of 1820-1830, 277 ct seq., and especially the remarks 
of James Monroe, James Madison, John Marshall, Philip P. Harbour, and Abel P. 
Upshur. See also the remarks of Daniel Webster, John Adams, and Judge Story 
in the Massachusetts Convention of 1820, and of Chancellor Kent, Rufus King, 
Martin Van Buren, and Ambrose Spencer in the New York Constitutional Conven- 
tion of 1821. See also The Suffrage Franchise in the Thirteen English Colonies in 
America (1905), by A. E. McKinley, 



418 THE PREAMBLE AND CONGRESS 

disabilities in a Republic where merit was understood 
to form the great title to public trust, honors and 
rewards." Gerry (who later refused to sign and 
opposed the adoption of the Constitution) favored 
property as a qualification, saying : "If property be 
one object of Government, provisions for securing it 
cannot be improper." Madison and King thought that 
if property was to be any qualification, it should not 
be confined to "landed property", since this would 
exclude the commercial and manufacturing classes ; 
and Madison observed that the "unjust laws of the 
States had proceeded" more from the landed interest 
than from any other source, meaning by this that the 
landed interest were largely the farmers and owners of 
land on the frontier who favored paper money and stay 
laws hindering collection of debts. After striking out 
the word "landed", the Convention, by a vote of eight 
to three (Connecticut, Pennsylvania, and Delaware 
voting no), had adopted Mason's proposal to instruct 
the Committee of Detail to report a property qualifi- 
cation. In accord with this instruction, the Com- 
mittee's Report of August 6 provided that: "The 
Legislature of the United States shall have authority 
to establish such uniform qualifications of the members 
of each House, with regard to property, as to the said 
Legislature shall seem expedient." When this was 
debated, on this August 10, Charles Pinckney said that 
"he was opposed to the establishment of an undue 
aristocratic influence in the Constitution, but he 
thought it essential that the members of the Legislature, 
the Executive, and the Judges should be possessed of 
competent property to make them independent and 
respectable." He moved that the President and 
Judges be required to possess clear, unincumbered 
estates to an [unfixed] amount. Rutledge concurred. 
On the other hand, the wise Doctor Franklin "expressed 



FRIDAY, AUGUST 10, 1787 419 

his dislike of everything that tended to debase the 
spirit of the common people. If honesty was often the 
companion of wealth, and if poverty was exposed to 
peculiar temptations, it was not less true that the 
possession of property increased the desire for more 
property. Some of the greatest rogues he was ever 
acquainted with, were the richest rogues. . . . This 
Constitution will be much read and attended to in 
Europe, and if it should betray a great partiality to the 
rich will not only hurt us in the esteem of the most 
liberal and enlightened men there, but discourage the 
common people from removing into this country." 

Pinckney's motion was (as Madison states) "rejected 
by so general a no that the States were not called." 
Ellsworth, always zealous for the rights of the States, 
wished to leave the whole matter of qualifications to the 
State Legislatures. G. Morris, on the other hand, 
moved to give Congress unlimited power to fix qualifi- 
cations. This motion was defeated. And thereupon, 
the Convention rejected the clause as reported by the 
Committee, thus refusing to establish any property 
qualification. In this way, for the third time, the 
sharp issue between property and non -property was 
decided against the former by the Convention. 1 

On this same day, August 10, the Convention, with- 
out debate or dissent, agreed to the section reported by 
the Committee of Detail which provided that : 

"Each House shall be the judge of the elections, returns 
and qualifications of its own members." 

1 Timothy Pickering, writing to Charles Tillinghast, Dec. 24, 1787, pointed out 
that the charges made by the opponents of the Constitution that it established an 
aristocracy, were absurd, since hereditary rights, titles of nobility, and property 
qualifications were all excluded, a fact which "manifests the marked regard of the 
Convention to preserve the equal rights of the people, without suffering mere wealth 
to hold the smallest pre-eminence over poverty attended with virtue and abilities. 
It deserves, indeed, particular notice that while several of the State Constitutions 
prescribe a certain degree of property as indispensable qualifications for office, this 
which is proposed for the United States throws the door wide open for the entrance 
of erery man who enjoys the confidence of his fellow citizens.'* Pickering Papers 
MSS.',\, 412, in Mass. Hist. Soc. Library. 



420 THE PREAMBLE AND CONGRESS 

The meaning of this provision (which became Article 
I, section 5, of the Constitution as finally drafted) is 
clearly shown, if taken in connection with the action 
of the Convention on the proposed property qualifi- 
cations. As above stated, the Committee's Report 
provided that Congress should have power "to 
establish such uniform qualifications of the members 
of each House with regard to property as to the said 
Legislature shall seem expedient." When G. Morris 
moved to strike out the words "with regard to 
property", the effect of this, if adopted, would have 
been to allow Congress to establish any qualifications 
which it deemed expedient. Williamson and Madison 
strongly opposed this. Madison said that it would 
vest "an improper and dangerous power in the Legis- 
lature", and that the qualifications of the elected were 
"fundamental articles in a Republican Government 
and ought to be fixed by the Constitution." If the 
Legislature could regulate them, "it can by degrees 
subvert the Constitution . . . by limiting the number 
capable of being elected. . . . Qualifications founded 
on artificial distinctions may be devised by the stronger, 
in order to keep out partisans of a weaker faction." 
He also pointed out "the British Parliament possessed 
the power of regulating the qualifications ... of the 
elected and the abuse they had made of it was a lesson 
worthy of our attention." They had made changes in 
qualifications "subservient to their own views or to 
the views of political or religious parties." l The Con- 

1 Madison's reference was undoubtedly to the famous election case of John 
Wilkes, in England, who had been rejected as a member by the House of Commons, 
on Feb. 3, Feb. 16, March 18, and April 13, 1769, for the reason that he had been 
earlier expelled by the House on Jan. ID, 1764. On May 3, 1782, the House of Com- 
mons expunged the resolution passed by it, Feb. 17, 1769, which read as follows : 
*' Mr. Wilkes, having been in this session of Parliament, expelled the House, was and 
is incapable of being elected a member to serve in the present Parliament." For 
the best accounts of the Wilkes episode, see Mahan's History of England, V, 349 
et seq. ; History of the English Parliament (1892), by G. Barnett Smith, I, 361-369 ; 
The Law and Custom of the Constitution (4th ed. 1909), by Sir William R. Anson, I, 



FRIDAY, AUGUST 10, 1787 

vention evidently concurred in these views ; for it 
defeated the proposal to give to Congress power to 
establish qualifications in general, by a vote of seven 
States to four; and it also defeated the proposal for 
a property qualification, by a vote of seven States to 
three. Such action would seem to make it clear that 
the Convention did not intend to grant to a single 
branch of Congress, either to the House or to tho 
Senate, the right to establish any qualifications for its 
members, other than those qualifications established 
by the Constitution itself, viz., age, citizenship, and 
residence. For certainly it did not intend that a 
single branch of Congress should possess a power which 
the Convention had expressly refused to vest in the 
whole Congress. 1 As the Constitution, as then drafted, 
expressly set forth the qualifications of age, citizenship, 
and residence, and as the Convention refused to grant 
to Congress power to establish qualifications in general, 
the maxim expressio unius exclusio altcrius would seem 
to apply. It is to be noted especially that Dickinson 
of Delaware, on July 6, expressed his opposition to 
"any recital of qualifications in the Constitution" at 
all on this very ground ; for, said he, " it was impossible 
to make a compleat one and a partial one would by 
implication tie up the hands of the Legislature from 
supplying the omission." The Committee of Detail 

78 et seq., 1 68-172 ; A Treatise on the Law, Privilege*, Proceedings and Usage of Par- 
liament (12th ed. 1917), by Sir Thomas Krskine, May, pp. 26 et seq. ; Cooley's Black- 
stone (1872), Book I, p. 162, note 18 ; Parliamentary History of England (1813), XVI, 
pp. 540-587. 

1 It is to be noted that at least four amendments to the Constitution have been 
proposed to the qualifications for members of Congress specifically prescribed by 
the Constitution: to make officers and stockholders of the Bank of the United 
States ineligible, 2d Cong., 3d Sets., March 2, 1793 ; to make Government contrac- 
tors ineligible, Oth Cong., 1st Scss., March 29, 1806; 10th Cong., 1st Seas., March 1, 
1808; $th Cong., 1st Sess., Feb. 13, 1836. The New York ratifying Convention 
in 1788, and the Massachusetts and Connecticut Legislatures in 1798, recommended 
an amendment making naturalized foreigners ineligible, as did the Legislatures of 
Massachusetts and Connecticut, in 1815, following the recommendation of the 
Hartford Convention. Proposed Amendments to the Constitution, 1789-1889 (1897), 
by Herman V. Ames. 



422 THE PREAMBLE AND CONGRESS 

had differed from Dickinson's view and had made 
express provision as to qualifications. And to this 
express provision, Dickinson's argument was un- 
doubtedly applicable that the recital of these qualifi- 
cations did "by implication tie up the hands of the 
Legislature from supplying" any further qualifications. 
Wilson, on this August 10, recognized this to be the 
effect ; for he said, if the section giving power to 
Congress to establish property qualifications remained 
in the Constitution, "this particular power would 
constructively exclude every other power of regulat- 
ing qualifications." The elimination of all power in 
Congress to fix qualifications clearly left the provi- 
sions of the Constitution itself as the sole source of 
qualifications. l 

1 An argument to the contrary has been made based on the fact that the qualifi- 
cations, as reported by the Committee of Detail on August 6, were expressed affirma- 
tively, thus: "Every member of the House of Representatives shall be of the age 
of twenty-five years at least ; shall have been a citizen in the United States for at 
least three years before his election ; and shall be at the time of his election a resident 
of the State in which he shall be chosen" (and similarly as to Senators) ; whereas, 
as finally drafted by the Committee of Style on September 12, they were expressed 
negatively as follows: "No person shall be a representative who shall not have 
attained to the age of twenty-five years and been seven years a citizen of the United 
States, and who shall not, when elected, be an inhabitant of that State in which he 
shall be chosen" (and similarly as to Senators). The argument is made that 
this change, while giving to each House unlimited power to establish qualifica- 
tions, simply imposed an obligation on them not to admit any persons having the 
specified disqualifications. 

It is to be noted, however, that the Committee of Style had no authority from 
the Convention to make alterations of substance in the Constitution as voted by 
the Convention, nor did it purport to do so ; and certainly the Convention had no 
belief, after September 12, that any important change was, in fact, made in the pro- 
visions as to qualifications adopted by it on August 10. That there was no differ- 
ence in legal effect between a qualification expressed affirmatively and one expressed 
negatively may be seen from the fact that the Constitution of Massachusetts of 
1780 contained affirmative qualifications for Representatives and exactly similar 
negative qualifications for Senators as follows: "Every member of the House of 
Representatives ... for one year at least next preceding his election shall have 
been an inhabitant of and have been seized in his own right of a freehold of the value 
of one hundred pounds within the town he shall be chosen to represent, or any 
taxable estate of two hundred pounds." "No person shall be capable of being 
elected as a Senator who is not seized of his own right of a freehold, within this 
commonwealth, of the value of three hundred pounds at least, or possessed of per- 
sonal estate to the value of six hundred pounds at least, or both to the amount of 
the same sum, and who has not been an inhabitant of this Commonwealth for the 
space of five years immediately preceding his election, and at the time of his elec- 



FRIDAY, AUGUST 10, 1787 423 

It is, moreover, especially to be noted that the 
provision that "each House shall be the judge of ... 
the qualifications of its own members" did not originate 
with this Convention. Such a provision was found 
in the State Constitutions of Delaware, Maryland, 
Massachusetts, New Hampshire, New Jersey, North 
Carolina, Pennsylvania, and South Carolina. It was 
taken originally from William Penn's charter to 
Pennsylvania of 1701, which provided that the As- 
sembly "shall have power to choose a Speaker and 
their other officers, and shall be judges of the qualifi- 
cations and elections of their own members." Each 
of the State Constitutions contained provisions estab- 
lishing many qualifications for members of the Leg- 
islature residence, age, religion, property, and others 
(qualifications expressed in both affirmative and nega- 
tive terms) ; and it was with reference to possession 
of such qualifications that their Legislatures were 
authorized to judge as to their members. There is, 
so far as appears, no instance in which a State Legis- 
lature, having such a provision in its Constitution, 
undertook to exclude any member for lack of 
qualifications other than those required by such 
Constitution. 1 In the Constitutions of Massachusetts 

tion he shall be an inhabitant in the district for which he shall be chosen." And in 
each case the Massachusetts Constitution termed them "qualifications" and 
empowered the House and Senate to judge them, as follows: "The Senate shall 
be the final judge of the elections, returns and qualifications of their own members 
as pointed out in the Constitution." "The House shall be the final judge of the 
elections, returns and qualifications of their own members as pointed out in the 
Consti t utio n . " 

So, too, in the State Constitutions of New Hampshire of 1784, Pennsylvania 
of 1776, and South Carolina of 1778, the qualifications of members of the Legisla- 
ture are expressed in the negative phraseology thus : " No person shall be capable 
of being elected" "no person shall be eligible to sit", etc. 

1 In 1780 in the State of Virginia, which had no provision in its Constitution on 
this subject, the House of Delegates refused to admit John Breckenridge as a mem- 
ber on the ground that he was a minor (aged 19) ; but its action was apparently 
based on the fact that he could not qualify under the provision of the State Con- 
stitution that a member must be "such men as actually resided in and are free- 
holders of the same, arid are qualified according to law." 

It was stated in The Federalist (No. 66) by Hamilton that: "The qualifications 



434 THE PREAMBLE AND CONGRESS 

and New Hampshire, it was specifically stated that the 
qualifications of which the Legislature was to "judge" 
were to be "the qualifications of their own members 
as pointed out in the Constitution" 

That the Convention was far from wishing to give 
the Houses of Congress power by a majority vote to 
establish any qualification which they chose for ad- 
mission of members, is seen by the fact that on this 
same day, August 10, it voted to alter a provision 
reported by the Committee of Detail that: "Each 
House may determine the rules of its proceedings, may 
punish its members for disorderly behaviour ; and may 
expel a member." Madison, observing "that the right 
of expulsion was too important to be exercised by a bare 
majority of a quorum ; and in emergencies of faction 
might be dangerously abused", moved that expulsion 
should be allowed only with the concurrence of two 
thirds of the members. Randolph, Mason, and Carroll 
agreed with him; and it was unanimously voted (the 
vote of Pennsylvania being divided). It is difficult to 
conceive that the Convention in so requiring a two 
thirds vote to expel was, at the same time, willing to 
allow each House to exclude a member by a majority 
vote, for any reason which it should deem fit. 

While the refusal to make any property qualification 
for Representatives and Senators was a striking example 
of the liberal sentiment pervading the Convention, and 

of the person who may choose or be chosen, as has been remarked on another occa- 
sion, are defined and fixed in the Constitution ; and are unalterable by the Legisla- 
ture." So also in The Federalist (No. 52) it was said that "the qualifications of the 
elected . . . being at the same time more susceptible of uniformity have been 
properly considered and regulated by the Convention." 

It may be noted, on the other hand, that during the contest over the ratification 
of the Constitution, at least one Antifederalist writer in Massachusetts believed 
that the Congress was given by the Constitution unlimited power to fix qualifica- 
tions. Thus "Cornelius", in Hampshire Gazette, Dec. 11, 18, 1787, wrote: "By 
this Federal Constitution, each House is to be the judge not only of the elections 
and returns, but also of the qualifications of its members, and that, without any 
other rule than such as they themselves may prescribe. This power in Congress, I 
take to be equal to that of a negative on elections in general." 



FRIDAY, AUGUST 10, 1787 425 

while it represented a much more democratic tendency 
than had appeared in the State Constitutions, all of 
which contained such property qualifications, the 
Convention omitted requiring one other qualification, 
of even greater significance in showing its determination 
to frame a liberal form of government. Under the 
State Constitutions, a religious qualification was re- 
quired of Representatives in the Legislature in every 
State except New York and Virginia. Thus, in New 
Hampshire, New Jersey, South Carolina, North Caro- 
lina, and Georgia, he was required to be a Protestant ; 
in Massachusetts and Maryland, of the Christian 
religion ; in Pennsylvania, a Protestant, and having 
a belief in God and the inspiration of the Scriptures ; 
in Delaware having a belief in the Trinity and in the 
inspiration of the Scriptures. 1 The Convention, having 
all the religious requirements of the States before it, 
and knowing that, under them Catholics, Jews, and 

1 See History of the United States (1912), by Edward Charming, III ; Constitutional 
History of the American People (1898), by Francis N. Thorpe, I, 70 : "No State at 
this time pursued a political practice which would now be considered liberal. In 
one way or another, Church and State were united. Unitarians, Jews and Roman 
Catholics were not allowed to enjoy the privilege granted to others who were de- 
cribed as religiously qualified. New York was most tolerant of the right to private 
opinion. When the Constitution of Pennsylvania was forming in 1776, it was pro- 
posed to restrict membership in the Assembly, and indeed the right to vote and 
hold office to those who, on oath or affirmation professed * faith in God the Father 
and in Jesus Christ His eternal son the true God, and in the Holy Spirit, one God, 
blessed forever more ; ' and who acknowledged the Holy Scriptures of the Old and 
New Testament to be given by Divine inspiration. Franklin, who was President 
of the Convention, expressed the opinion, in private correspondence, four years 
later, that the clause requiring Members of Assembly to declare their belief that the 
whole of the Bible is given by Divine inspiration might better have been omitted. 
'I opposed the clause/ said he, 'but being overpowered by numbers and fearing 
more might in future times be grafted on it, I prevailed in having the additional 
clause adopted "that no further or more extended profession of faith should ever be 
exacted." . . . The evil of it was the less as no inhabitant nor any officer of gov- 
ernment, except the members of assembly, was obliged to make that declaration.' 
Works of Benjamin Franklin (Bigelow's ed.), XII, 140, Franklin to Dr. Richard 
Price, Oct. 9, 1780. For the origin of the movement and the attempt to secure 
other religious qualifications in this Constitution, see the letter of Reverend Henry 
M. Muhlenburg, October 2, 1776, giving an account of a conference of the Phil- 
adelphia clergy, who feared that the Commonwealth was to be ruled 'by Jews, 
Turks, Spinozists, Deists, and perverted Naturalists', in the Pennsylvania Magazine 
of History and Biography, April, 1898, p. 129-131." 



426 THE PREAMBLE AND CONGRESS 

even members of some Protestant denominations were 
excluded from admission to State Legislatures, deliber- 
ately determined that there should be no such illiberal 
discriminations under the National Government. The 
credit for this notable step is due to Charles Pinckney 
of South Carolina. Neither the Randolph Plan nor 
the Paterson Plan of Government contained any 
provision on the subject. On August 20, however, 
Pinckney submitted a proposition that : " No religious 
test or qualification shall ever be annexed to any oath 
of office under the authority of the United States." 
The Committee of Detail, to which this was referred, 
made no report upon it. Accordingly, when the 
section of the Constitution relative to oaths, as reported 
by that Committee on August 6, came up for con- 
sideration of the Convention, on August 30, Pinckney 
moved that there be added to it the following broad 
pronouncement: "but no religious test shall ever be 
required as a qualification to any office or public trust 
under the authority of the United States." Although 
Roger Sherman thought it unnecessary, saying that 
the prevailing liberality was a sufficient security against 
such tests, the Convention adopted it without a dis- 
senting vote. Thus, not only Representatives and 
Senators, but also all public officers of the United 
States, were freed from any religious qualifications. 

SATURDAY, AUGUST 11, 1787 

IN CONVENTION 
Adjournments of Congress 

The Report of the Committee of Detail of August 6 
had provided that : 

"Neither House, without the consent of the other, shall 
adjourn for more than three days, nor to any other place 
than that at which the two Houses are sitting. . t , He 



SATURDAY, AUGUST 11, 1787 427 

(the President) may convene them (the Congress) on ex- 
traordinary occasions." 

"In case of disagreement between the two Houses, with 
regard to the time of adjournment, he may adjourn them 
to such time as he thinks proper." 

The right of a Legislature to adjourn of its own voli- 
tion, without the necessity of assent by the Executive 
and without right in the Executive to require its 
adjournment, is an important Legislative authority. 1 
In the Colonies, there had been many struggles between 
the popular Assemblies and the Royal Governors over 
the latter's exercise of power to prorogue or dissolve the 
former. Hence, when the State Constitutions were 
framed, complete power over their own sittings was 
reserved to the Legislatures. Virginia, New Jersey, 
Delaware, Pennsylvania, Maryland, and North Caro- 
lina allowed either branch of the Legislature to 
"adjourn at pleasure"; New Hampshire and Massa- 
chusetts provided that neither should adjourn for more 
than two days (and South Carolina, for more than three 
days) without the consent of the other. It was the 
provision in these latter States which the Committee 
copied. The State Constitutions of Delaware, Penn- 
sylvania, Maryland, New York, South Carolina, 
Massachusetts,. and New Hampshire allowed the Execu- 
tive, however, to convene the Legislature "before the 
time to which they stand adjourned " ; and this author- 
ority the Committee also adopted. When the Conven- 
tion debated these provisions on this day, the discussion 
was confined to the advisability of allowing the Houses 
to change the place or location of their sessions. The 
many transits of the Congress of the Confederation from 
Philadelphia, Princeton, Trenton, Annapolis, and New 
York, between 1782 and 1786, had impressed the dele- 

1 See The Evolution of the Constitution of the United States (1910), by Sydney 
George Fisher, pp. 135-136. 



428 THE PREAMBLE AND CONGRESS 

gates with the disadvantages of such "mutability." 
Many desired that there should be no possibility of a 
change in location, except by a duly enacted law ; and 
the section as reported by the Committees was ac- 
cepted, on this August 11, with slight verbal changes. 

Privileges of Congress 

One other important privilege of the Legislature was 
carefully guarded, in the provision in the Report of the 
Committee of Detail that : 

"Freedom of speech and debate in the Legislature shall 
not be impeached or questioned in any Court or place out 
of the Legislature ; and the members of each House shall, 
in all cases except treason, felony and breach of the peace, 
be privileged from arrest during their attendance at Con- 
gress, and in going to and returning from it." 

These were rights which were derived directly from 
the provisions in England pertaining to Parliament. 1 
The Massachusetts and New Hampshire State Con- 
stitutions also had provided that : 

"The freedom of deliberation, speech and debate, in 
either House of the Legislature is so essential to the rights 
of the people, that it cannot be the foundation of any ac- 
cusation or prosecution, action or complaint in any other 
Court or place whatsoever. 

. . . And no member of the House of Representatives 
shall be arrested, or held to bail on mesne process, during 
his going into, returning from, or his attending the General 
Assembly." 

The Maryland State Constitution provided that : 

"Freedom of speech and debates or proceedings in the 
Legislature ought not to be impeached in any other Court 
of Judicature." 

And the Articles of Confederation provided that : 

1 See Sources of the Constitutions of the United States (1894), by C. Ellis Stevens. 



SATURDAY, AUGUST 11, 1787 429 

"Freedom of speech and debate shall be allowed in Con- 
gress nor shall anything done in Congress be impeached 
or questioned out of it. 

. . . The members of Congress shall be protected in 
their persons from arrests and imprisonments during the 
time of their going to and from, and attendance in Congress, 
except for treason, felony, or breach of the peace." 

The recommendations of the Committee of Detail 
were adopted, without debate (August 10). In the 
Report of the Committee of Style on September 1, and 
in the final draft of the Constitution, they appear in 
compressed form, as Article I, section 6, clause 1. 

Journals of Congress 

The Committee of Detail had provided in its Report 
that : 

"The House of Representatives, and the Senate, when it 
shall be acting in a Legislative capacity, shall keep a jour- 
nal of their proceedings, and shall, from time to time, pub- 
lish them ; and the yeas and nays of the members of each 
House, on any question, shall at the desire of one fifth 
part of the members present be entered on the Journal." 

In England, for several hundred years, secrecy of 
Legislative proceedings had been the general rule. It 
was not until 1641 that provisions for a record of trans- 
actions was made by the issue of the "Diurnal Occur- 
rences of Parliament" ; but no publication of speeches 
was even then allowed. In 1680, an Act was passed 
requiring an authorized publication of votes and pro- 
ceedings ; but until 1771, Parliament regarded public 
reports of speeches and debates as illegal. 1 

The Articles of Confederation had required the Con- 
gress to : 2 

1 See Sources of the Constitution of the United States (1894), by C. Ellis Stevens, 
pp. 107-108. 

2 It is to be noted that the Congress of the Confederation expressly refused to 
vote for open sessions. On April 23, 1783, a motion by James Wilson, seconded by 



430 THE PREAMBLE AND CONGRESS 

"publish the Journal of their proceedings monthly, ex- 
cept such parts thereof relating to treaties, alliances or 
military operations, as in their judgment require secrecy; 
and the yeas and nays of the delegates of each State on any 
question shall be entered on the Journal, when it is desired 
by any delegate; and the delegates of a State, or any of 
them, at his or their request, shall be furnished with a tran- 
script of the said Journal, except such parts as are above 
excepted, to lay before the Legislatures of the several States." 
When the Convention debated this section in the 
Report of the Committee of Detail, on August 10 and 
11, G. Morris, Carroll, and Randolph thought that if 
the yeas and nays were proper at all, any individual 
ought to be authorized to call for them. Gorham, 
Ellsworth, and Sherman thought the recording of yeas 
and nays at all, as objectionable and misleading to the 
people, since "the reasons governing the votes never 
appear along with them." G. Morris and Wilson an- 
swered that if reasons were to be entered, this privilege 
must be allowed to the majority as well as to the minor- 
ity, and thereby the Journal would, "like the records of 
a Court, be filled with replications, rejoinders, etc." A 
motion to allow any member to enter his dissent was 
defeated. Gerry then moved to strike out "when it 
shall be acting in its Legislative capacity", and to insert 
" such parts thereof as in their judgment require secrecy." 
Madison and Rutledge moved as a substitute : 

"that each House shall keep a Journal of its proceedings, 
and shall publish the same from time to time ; except 
such part of the proceedings of the Senate, when acting 
not in its Legislative capacity, as may be judged by that 
House to require secrecy." 

Alexander Hamilton, that " whereas it is of importance in every free country that the 
conduct and sentiments of those to whom the direction of public affairs is committed 
should be publicly known ; resolved, that in future the doors of Congress shall be 
open, unless otherwise ordered by a vote or by the rules of the House ", was rejected 
by a vote of seven States to one (Pennsylvania being the dissenting State, and 
Virginia being divided). 



SATURDAY, AUGUST 11, 1787 431 

This motion was rejected, some delegates objecting 
to the implication that the Senate might act in some 
capacity other than Legislative which it was, never- 
theless, undoubtedly to do. Ellsworth and Sherman, 
moreover, thought it unnecessary, as "the Legislature 
will not fail to publish their proceedings from time to 
time", and "the Legislature might be trusted in this 
case, if in any." Wilson, however, thought that "the 
people have a right to know what their agents are doing 
or have done, and it should not be in the option of the 
Legislature to conceal their proceedings" ; and that as 
this provision was now in the Articles of Confederation, 
its omission might be regarded as a suspicious circum- 
stance. Mason also thought that it "would give a just 
alarm to the people, to make a conclave of their Leg- 
islature." Finally, the Convention voted to require 
publication of the Journals of each House "except such 
parts as may in their judgment require secrecy/' 

OUT OF CONVENTION 

Washington noted : 

"In Convention. Dined at the Cold Spring Club at 
Springsbury and after tea returned and spent the eve- 
ning at home." 

A New York despatch of this date expressed the view 
that the people would undoubtedly adopt the new Con- 
stitution, though State officials and interested factions 
might oppose : 1 

"Some timid, or perhaps interested, politicians have 
expressed apprehensions that the Federal Government will 
not be adopted by the States or the people. Such per- 
sons do not know or recollect the good sense of the Ameri- 
cans, who, under pressing circumstances, in the year 1775, 
adopted the resolutions of Congress and in the year 1776, 
the Declaration of Independence. For neither of these 

1 Reprinted in Boston Gazette, Aug. 20 ; Connecticut C our ant, Aug. 20 ; Maryland 
Journal, Aug. 14, 1787; and in other papers. 



432 THE PREAMBLE AND CONGRESS 

were the citizens of America half so well prepared as they 
are now for a vigorous Federal Government ; it is probable 
some of the States will object to it, and certain factions 
composed of salary and perquisite men may object to it 
in all the States ; but (as was the case with the resolutions 
of Congress and the Declaration of Independence) truth and 
public safety will finally prevail over fell interest and faction. 
America will be the delight of her friends and citizens, and 
the envy, admiration and example of the whole world." 

The same views were expressed in a despatch from 
New Hampshire about this time : l 

"*As the heart panteth after the cooling water brook' 
so does every citizen of this State pant after a reform in 
Government, not only a local but a Foederal reform, and 
this, we have reason to hope, will be effected, notwith- 
standing the arts that are or may be used in New York and 
Rhode Island to oppose it. ... The characters residing 
in those two States who have uniformly opposed a Foederal 
reform are well known. It would be well for them to 
desist from their nefarious schemes. The united force of 
America is against them. The bolts of vengeance are 
forging tremble, ye workers of iniquity, and no longer 
oppose the salvation of your country, lest speedy destruc- 
tion come upon you and you fall into the pit which your 
own hands have digged." 

Edward Carrington, a Member of Congress from Vir- 
ginia, wrote from New York this day, to Madison : 

"The departure of North Carolina and Georgia left 
us only 7 States, and the day before yesterday we lost 
another in the decampment of Doctor Holton (of Massa- 
chusetts). . . . The President has been requested to write 
to the States unrepresented, pressing upon them the ob- 
jects which require the attendance of their delegations, and 
urging them to come forward. Amongst those objects 
is that of the report of the Convention, which, it is sup- 
posed, is now in the state of parturition. This bantling 

1 Pennsylvania Journal, Aug. 18, 1787, despatch from Portsmouth, N. H., 
Aug. 7. 



SUNDAY, AUGUST 12, 1787 433 

must receive the blessing of Congress this session, or, I 
fear, it will expire before the new one will assemble. Every 
experiment has its critical stages, which must be taken 
as they occur, or the whole will fail. The people's expec- 
tations are rising with the progress of this work, but will 
desert it, should it remain long with Congress. Permit 
me to suggest one idea as to the mode of obtaining the 
accession of the States to the new plan of Government. Let 
the Convention appoint one day, say the first of May, 
upon which a Convention appointed by the people shall 
be held in each State for the purpose of accepting or re- 
jecting, in toto, the project. Supposing an act of the ordi- 
nary Legislature to be equally authentic, which would not 
be true, yet many reasons present themselves in favor 
of special Conventions. Many men would be admitted 
who are excluded from the Legislatures. The business 
would be taken up unclogged with any other. And it 
would effectually call the attention of all the people to the 
object as seriously affecting them. All the States being 
in Convention at the same time, opportunities of speculat- 
ing upon the views of each other would be cut off. The 
project should be decided upon without an attempt to alter 
it. You have doubtless found it difficult to reconcile the 
different opinions in your body. Will it not be impos- 
sible then, to reconcile those which will arise amongst 
numerous Assemblies in the different States? It is pos- 
sible there never may be a general consent to the project, 
as it goes out ; but it is absolutely certain there will never 
be an agreement in amendments. It is the lot of but few 
to be able to discern the remote principles upon which 
their happiness and prosperity essentially depend." 

SUNDAY, AUGUST 12, 1787 

Washington noted in his diary : l 

"Dined at Bush-hill with Mr. William Hamilton. Spent 
the evening at home writing letters." 

1 It is interesting to note that, the day before, August 11, the Herald had de- 
scribed a highway robbery by two men with cudgels which occurred on land leading 



434 THE PREAMBLE AND CONGRESS 

Richard Dobbs Spaight wrote to James Iredell, this 
day: 

"The Convention, having agreed upon the outlines of a 
plan of government for the United States, referred it to a 
small committee to detail ; that committee have reported, 
and the plan is now under consideration, I am in hopes 
we shall be able to get through it by the 1st or 15th of Sep- 
tember. It is not probable that the United States will in 
future be so ideal as to risk their happiness upon the una- 
nimity of the whole, and thereby put it in the power of 
one or two States to defeat the most salutary propositions 
and prevent the Union from rising out of that contemptible 
situation to which it is at present reduced. There is no 
man of reflection who has maturely considered what must 
and will result from the weakness of our present Federal 
Government, ?,nd the tyrannical and unjust proceedings 
of most of our State Governments, if longer persevered in, 
but must sincerely wish for a strong and efficient National 
Government. We may naturally suppose that all these 
persons who are possessed of popularity in the different 
States and which they make use of, not for the public bene- 
fit, but for their private emolument, will oppose any sys- 
tem of this kind." 

It may be noted that this letter concluded with a 
criticism of the North Carolina Judges for a "usurpa- 
tion of authority" in holding a statute of that State 
unconstitutional, " which must produce the most serious 
reflection in the breast of every thinking man and of 
every well wisher to his country." This is practically 
the only known letter taking that position at that 
time; and to it Iredell made an able reply in which 
he said : * 

to the back of Bush-hill. The Philadelphia papers of June 27. 1787, reported an 
attack on William Hamilton and his daughter by six or eight footpads near Market 
Street and 12th Street. 

1 Life and Correspondence of James Iredell (1858), by Griffith J. McRee, III, 168, 
172, Spaight to Iredell, Aug. 12, 1787 ; Iredell to Spaight, Aug. 26, 1787 ; see also 
Address to the People, by Iredell, Aug. 17, 1786. 



MONDAY, AUGUST 13, 1787 435 

"Either the fundamental irrepealable law must be obeyed 
by the rejection of an act unwarranted by and inconsistent 
with it, or you must obey an act founded on an authority 
not given by the people, and to which, therefore, the people 
owe no obedience. It is not that the Judges are appointed 
arbiters and to determine, as it were, upon any appli- 
cation whether the Assembly have or have not violated 
the Constitution; but when an act is necessarily brought 
in judgment before them, they must, unavoidably, deter- 
mine one way or another." 

MONDAY, AUGUST 13, 1787 

IN CONVENTION 

On this day, a violent debate took place over a motion 
to reconsider the action of the Convention of August 8 
in striking out the provision made by the Committee of 
Detail, in conformity with the Great Compromise vest- 
ing in the House the power to originate all revenue bills. 
Some of the delegates from the large States deeply 
resented this action and viewed it as a deliberate repu- 
diation of the prior vote. The Convention adhered 
to its vote of August 8 ; and thus a victory was again 
scored by the supporters of the power of the Senate. 
This debate is discussed, in detail, infra, under date of 
September 8, when final action on the subject was taken 
by the Convention, as the result of another compromise. 

OUT OF CONVENTION 
Washington noted : 

"In Convention. Dined at home Mr. Morris's and 
drank tea with Mrs. (Sarah) Bache at the President's (Ben- 
jamin Franklin)/' 

The Herald reported that the debates of the Conven- 
tion this day continued till five o'clock, "when, it is said, 
a decision took place upon the most important ques- 
tion that has been agitated since the meeting of this 



436 THE PREAMBLE AND CONGRESS 

Assembly." 1 A Philadelphia despatch to a Boston 
paper, this day, said : 2 

"The Convention, I am told, have unanimously agreed 
on a system for the future Government of the United States 
whicli will speedily be laid before the several Legislatures 
for their acceptance and ratification. What this system 
is, is not yet known but to the framers of it, but that it will 
be a system founded on justice and equity in which the 
rights of citizens will be properly balanced, considering 
the characters who formed it, none can doubt. That, con- 
sistent with these, it may be energetic, none can but wish." 

Elbridge Gerry wrote, this day, to General James 
Warren in Massachusetts : 

"It is out of my power, in return for the information 
you have given me, to inform you of our proceedings in 
Convention, but I think they will be complete in a month 
or six weeks, perhaps sooner. Whenever they shall be 
matured, I sincerely hope they will be such as you and I can 
approve, and that they will not be engrafted with prin- 
ciples of mutability, corruption or despotism principles 
which some, you and I know, would not dislike to find in 
our National Constitution." 

On this day, there was published, for the first time in 
Philadelphia, a despatch from New Haven, Connecti- 
cut, dated August 2, which contained a report of a 
most extraordinary nature, to the effect that a move- 
ment for a monarchy was spreading in the country : 3 

"A circular letter is handing about the country recom- 
mending a kingly Government for these States. The writer 

1 Pennsylvania Herald, Aug. 15, 1787. 

2 Pennsylvania Gazette, Aug. 15; Independent Chronicle, Aug. 19, 1787. 

3 See Massachusetts Centinel, Aug. 8, quoting New Haven Gazette (Conn.) of 
Aug. 2 ; Independent Gazetteer, Aug. 14 ; Pennsylvania Gazette, Aug. 15 ; Independ- 
ent Chronicle, Aug. 16, 1787 ; and numerous other papers throughout the country. 

The Bishop of Osnaburgh, referred to in this story, was Frederick, Duke of York, 
born in 1763, second son of George III, and Secular Bishop of Osnaburgh, a town in 
the Prussian Province of Hanover. See especially George Ticknor Curtis' History 
of the Constitution (1858), II, 492-494. 



MONDAY, AUGUST 13, 1787 437 

proposes to send to England for the Bishop of Osnaburgh, 
second son of the King of Great Britain, and have him 
crowned King over this continent. We have found by 
experience, says he, that we have not wit enough to gov- 
ern ourselves that all our declamation and parade about 
Republicanism, Liberty, Property and the Rights of Man 
are mere stuff and nonsense, and that it is high time for us 
to tread back the wayward path we have walked in these 
twelve years. This plan, we are told, gains friends and 
partisans rapidly, and it surely is necessary for the great 
body of the people to be on their guard. The Federal 
Convention may save us from this worst of curses (a Royal 
Government), if we are wise enough to adopt their recom- 
mendations when they shall be communicated to us." 

This story was copied in newspapers throughout the 
States and caused some perturbation ; and an anecdote 
appearing in the Gazetteer shows that it was given con- 
sideration, even in Philadelphia : l 

"On taking down the Crown of Christ Church steeple, 
which sometime since had been much injured by lightning, 
one of the bystanders asked what they were going to do 
with it. He was told it was to be repaired and put up 
immediately. ' I guess,' says an arch boy, who had been 
very attentive to the query and answer, ' they had better 
wait till the Convention breaks up and know first what 
they recommend.'" 

Alexander Hamilton, in New York, started an inves- 
tigation of the sources of the story, and wrote to Col. 
Jeremiah Wadsworth in Connecticut : 2 

"The enclosed is said to be the copy of a letter circu- 
lating in your State. The history of its appearance among 
us is that it was sent by one Whitmore, of Stratford, for- 
merly in the Paymaster General's office, to one James 
Reynolds of this city. I am at a loss clearly to understand 

1 Independent Gazetteer, Aug. 18, 1787. 

2 Hamilton to Wadsworth, Aug. 20, 1787 ; Wadsworth to Hamilton, Aug. 26, 
1787; Col. David Humphreys to Hamilton, Sept. 16, 1787. 



438 THE PREAMBLE AND CONGRESS 

its object, and have some suspicion that it has been fabri- 
cated to excite jealousy against the Convention, with a 
view at an opposition to their recommendations. At all 
events, I wish, if possible, to trace its source and send it 
to you for that purpose. Whitmore must of course say 
where he got it, and by pursuing the information we may 
at last come at the author. Let me know the political 
connections of this man and the complexion of the people 
most active in the circulation of the letter. Be so good 
as to attend to this inquiry somewhat particularly, as I 
have different reasons of some moment for setting it on 
foot." 

Wadsworth replied to Hamilton's inquiry, as follows : 

"I received your favor this day, with the inclosed copy 
of a letter said to be circulating in this State. Some time 
since, a paragraph in the New Haven paper hinted at such 
a letter, and appeared to be written to scare the antifed- 
eral party or alarm them, and I believed it was well intended, 
as it seemed to be meant to prepare them to comply with 
the doings of the Convention least worse befell them 
but the close of this letter appears to be calculated for other 
purposes. Wetmore has always associated with Mr. 
who wished well to America and a good Government, he is 
half brother to the spirited Federal writer in our papers 
who signs himself Cato and if he has really written or 
circulated the letter in question I am quite at a loss to 
know his intentions. I have communicated this matter 
to Col. Humphrey in confidence who is on his way to New 
Haven (where Wetmore lives, tho formerly of Stratford) 
he will enquire carefully into the matter and write you. 
He has lived in the same house with Wetmore and can 
easily fathom him. Wetmore is naturally sanguine, has 
some talents, and I believe is enterprizing but fickle. 
Who the active people in this business are, I have yet to 
learn, as it certainly has not circulated hereabouts. But 
from Humphrey, you may expect to know all that is true 
in Wetmore's neighborhood." 



MONDAY, AUGUST 13, 1787 439 

And Col. David Humphreys of Connecticut also 
wrote to Hamilton : 

"Our friend, Col. Wadsworth, has communicated to 
me a letter in which you made enquiries respecting a politi- 
cal letter that has lately circulated in this State. I ar- 
rived in this town yesterday and have since conversed 
with several intelligent persons on the subject. It ap- 
pears to have been printed in a Fairfield paper as long 
ago as the 25th of July. I have not been able to trace 
it to its source. Mr. Wetmore informs me that when he 
first saw this letter, it was in the hands of one Jared Mans- 
field, who, I believe, has formerly been reputed a Loyalist. 
Indeed it seems to have been received and circulated with 
avidity by that class of people, whether it was fabricated 
by them or not. I think, however, there is little doubt 
that it was manufactured in this State. I demanded of 
Mr. Wetmore what he thought were the wishes and ob- 
jects of the writer of that letter; he said he believed it 
might be written principally for the amusement of the 
author and perhaps with some view to learn whether the 
people were not absolutely indifferent to all government 
and dead to all political sentiment. Before I saw the letter 
in question, a paragraph had been published by Mr. Meigs, 
giving an account of it and attempting to excite the ap- 
prehension of the Antifederalists, with an idea that the 
most disastrous consequences are to be expected, unless 
we shall accept the proceedings of the Convention. Some 
think this was the real design of that fictitious performance ; 
but others, with more reason, that it was intended to feel 
the public pulse and to discover whether the public mind 
would be startled with propositions of Royalty. The 
quondam Tories have undoubtedly conceived hopes of a 
future union with Great Britain, from the inefficiency of 
our Government and the tumults which prevailed in Massa- 
chusetts during the last winter. I saw a letter written 
at that period, by a clergyman of considerable reputation 
in Nova Scotia to a person of eminence in this State, stat- 
ing the impossibility of our being happy under our present 



440 THE PREAMBLE AND CONGRESS 

Constitution and proposing now we could think and argue 
calmly on all the consequences) that the efforts of the 
moderate, the virtuous, and the brave should be exerted 
to effect a re-union with the parent State. He mentioned, 
among other things, how instrumental the Cincinnati might 
be, and how much it would redound to their emolument. 
It seems, by a conversation I have had there, that the ulti- 
mate practicability of introducing the Bishop of Osna- 
burgh is not a novel idea among those who were formerly 
termed Loyalists. Ever since the peace it has been oc- 
casionally talked of and wished for. Yesterday, where I 
dined, half jest, half earnest, he was given as the first toast. 
I leave you now, my dear friend, to reflect how ripe we are 
for the most mad and ruinous projects that can be sug- 
gested, especially when, in addition to this view, we take 
into consideration how thoroughly the patriotic part of the 
community, the friends of an efficient Government, are dis- 
couraged with the present system and irritated at the popu- 
lar demagogues who are determined to keep themselves in 
office at the risque of everything. Thence apprehensions 
are formed, that tho' the measures proposed by the Con- 
vention may not be equal to the wishes of the most en- 
lightened and virtuous, yet that they will be too high-toned 
to be adopted by our popular Assemblies. Should that 
happen our political ship will be left afloat on a sea of chance, 
without a rudder as well as without a pilot. I am happy 
to see you have (some of you) had the honest boldness 
to attack in a public paper, the Antifederal dogmas of a 
great personage in your State [Gov. Clinton]. Go on and 
prosper. Were the men of talents and honesty through- 
out the Continent properly combined into one phalanx, 
I am confident they would be competent to hew their 
way thro 5 all opposition. Were there no little jealousies, 
bickerings, and unworthy sinister views to divert them 
from their object, they might by perseverance establish 
a Government calculated to promote the happiness of 
mankind and to make the Revolution a blessing instead 
of a curse." 



MONDAY, AUGUST 13, 1787 441 

Meanwhile, the accuracy of the report was denied by 
members of the Convention ; and for the first time they, 
unofficially, authorized a public statement to be made, 
which appeared in the Gazette, August 15, as follows : l 

"We are well informed that many letters have been 
written to the members of the Federal Convention from 
different quarters, respecting the reports, idly of circu- 
lating, that it is intended to establish a monarchical gov- 
ernment to send for the Bishop of Osnaburgh, etc. etc. 
to which it has been uniformly answered, "Tho we cannot 
affirmatively tell you what we are doing ; we can, nega- 
tively tell you what we are not doing we never once 
thought of a King.'" 

It is certain that there were no members of the Con- 
vention who actually favored a monarchy in this coun- 
try, though it is possible that the attitude of Alexander 
Hamilton and George Read, who advocated an 
extremely "high-toned" form of Government with an 
Executive and a Senate elected for life, gave some color 
to a belief on the part of some in their monarchical 
tendencies. 2 That there were delegates who regarded 
their attitude with suspicion is shown by a note made 
by James McIIenry, on his return from Maryland on 
August 4, with reference to his fellow-delegate, John F. 
Mercer : 3 

1 See also Pennsylvania Herald, Aug. 18 ; Pennsylvania Journal, Aug. 22; Boston 
Gazette, Aug. 27 ; Salem Mercury, Aug. 28, 1787 ; and many other papers. 

2 In later years, there were intimations that at one time Nathaniel Gorham of 
Massachusetts had leanings in that direction, but the proof of this story is extremely 
slight. See Prince Henry of Prussia and the Regency of the United States 1786, by 
R. Krauel, Amcr. 7/7.v/. Rev. (1911), XVII, 114; A Study of At anarchical Tendencies 
in the United States from 1776 to 1801 (1922), by Louise B. Dunbar. 

3 Daniel Carroll wrote to Madison, May 28, 1788 (Doc. Hist., IV, 636) : "It has 
come to light that Luther Martin, in his tavern harangues among the Members 
during the sitting of that Assembly, had informed many of them that more than 
twenty Members of the Convention were in favor of a Kingly Government, and that 
he received the information from Mr. McHenry who had a list of their names on 
the first printed report of the Committee of Detail. This positive assertion under 
the weight of Mr. McHenry's name had the effect I have mentioned [defeat of 
Carroll for Congress]. Some time after the breaking up of the Assembly, being 
informed of what Martin had said, I wrote to Mr. McHenry who gave for answer, 



442 THE PREAMBLE AND CONGRESS 

"Saw Mr. Mercer make out a list of the member's names 
who had attended or were attending in Convention, with 
for and against marked opposite most of them asked 
carelessly what question occasioned his being so particu- 
lar, upon which he told me, laughing, that it was no ques- 
tion but that those marked with *A' were for a king. I 
then asked him how he knew that, to which he said, 'No 
matter, the thing is so.' I took a copy with his per- 
mission. . . ." 

On the other hand, Abraham Baldwin in giving an 
account of the Convention four months later said that 
the delegates agreed in vesting in the President as much 
power "as could be, consistently with guarding against 
all possibility of his ascending in a tract of years or ages 
to Despotism or Monarchy of which all were cau- 
tious. Nor did it appear that any Members in Conven- 
tion had the least idea of insidiously laying the foundation 
of a future Monarchy . . . but were unanimously 
guarded and firm against everything of this ultimate 
tendency." * Madison himself later wrote that the 
determination of the delegates to provide an adequate 
National Government was strengthened by their belief 
that much of the opposition to the Convention came 
from men imbued with "monarchical or aristocratical 
predilections." 2 

that, seeing a list of names on Mr. Mercer's report, he copied it, and asked him what 
the words for and against meant, who replied, 'for a Kingly Government, against it.' 
I wrote to Mr. McHenry that as I had been injured by his name being mentioned, 
I desired he would take a proper occasion whilst the [State] Convention was sitting 
of having justice done me. He has answered that on speaking to Mercer on the 
subject, he told him that he meant a National Government, to which McHenry 
says, ' I do not know what you meant, but you said a Kingly Government/ This, 
Mercer denies and has given from under his hand that he * neither said Kingly or 
National Government/ I have a letter from Luther Martin, wherein he says he 
had the information from McHenry, without Mercer being mentioned, who told 
him he might rely on the persons being, as marked, for a Kingly Government. 
Thus, this matter rests at present. It is to be settled between McHenry and 
Martin on one point, and him and Mercer on another." 

1 The Literary Diary of Ezra Stiles (1901). Ill, December 21. 1787 see Appen- 
dix E. 

2 Writings of James Madison (Hunt's ed.) IX, Madison to John G. Jackson, 
Dec. 27, 1821. 



MONDAY, AUGUST 13, 1787 443 

"The disposition to give to the new system all the vigour 
consistent with Republican principles, was not a little 
stimulated by a backwardness in some quarters towards 
a Convention for the purpose, which was ascribed to a 
secret dislike to popular Government and a hope that delay 
would bring it more into disgrace and pave the way for 
a form of Government more congenial with monarchical or 
aristocratical predilections." 

And Jefferson, eleven years later, recorded "a very 
remarkable fact indeed in our history", which had been 
related to him by Abraham Baldwin, a delegate from 
Georgia. 1 Though Baldwin's information was un- 
doubtedly inaccurate, his statement is an example of 
what men then believed : 

"Before the establishment of our present Government, 
a very extensive combination had taken place in New York 
and the Eastern States among that description of people 
who were partly monarchical in principle, or frightened 
with Shays rebellion and the impotence of the old Con- 
gress. Delegates in different places had actually had con- 
sultations on the subject of seizing on the powers of a Gov- 
ernment and establishing them by force, had corresponded 
with one another, and had sent a deputy to Gen. Wash- 
ington to solicit his cooperation. He calculated too well 
to join them. The new Convention was in the meantime 
proposed by Virginia and appointed. These people be- 
lieved it impossible the States should ever agree on a Gov- 
ernment, as this must include the impost and all the other 
powers which the States had a thousand times refused to 
the general authority. They thereafter let the proposed 
Convention go on, not doubting its failure and confiding 
that on its failure would be a still more favorable moment 
for their enterprise. They therefore wished it to fail, and 
especially when Hamilton, their leader, brought forward 
his plan of Government, failed entirely in carrying it and 
retired in disgust from the Convention. His associates 

1 Writings of Thomas Jefferson (Ford's ed.), I. " The Anas", Jan. 5, 1798. 



444 THE PREAMBLE AND CONGRESS 

then took every method to prevent any form of Govern- 
ment being agreed to. But the well intentioned never 
ceased trying first one thing, then another, till they could 
get something agreed to. The final passage and adoption 
of the Constitution completely defeated the views of the 
combination and saved us from an attempt to establish a 
Government over us by force. This fact throws a blaze 
of light on the conduct of several members from New York 
and the Eastern States in the Convention at Annapolis 
and the Grand Convention. At that of Annapolis, sev- 
eral Eastern members most vehemently opposed Madi- 
son's proposition for a more general Convention with more 
general powers. They wished things to get more and 
more into confusion, to justify the violent measure they 
proposed. The idea of establishing a Government by 
reasoning and agreement they publicly ridiculed, as an 
Utopian project, visionary and unexampled." 

On this day, August 13, there was also published 
another false report as to the Convention, in the shape 
of a letter "from a Gentleman in Philadelphia to his 
Friend in Charleston", dated July 4. It is of curious 
interest, as showing conclusively how well the delegates 
had preserved secrecy prior to that date ; for, while it 
purported to give specific facts as to matters being con- 
sidered by the Convention, not a single fact referred to 
was accurate : 1 

"You requested me, in your last, to inform you of the 
state of our markets and politics in general ; which, in my 
last, I treated of in brief, when I only advised you of the 
nature of the business at the opening of the Convention ; 
but many matters have been proposed and debated on since 
and although secrecy was agreed on, it is credited by some 
of the first informed men in this city that amongst the 
matters now under consideration are 

A continuance of the Foederal Government, and to 

1 New York Daily Advertiser^ Aug. 13, 1787 ; see also Massachusetts Centinel, 
Aug. 29, 1787, and other papers. 



TUESDAY, AUGUST 14, 1787 445 

include the State of Vermont. To establish a revenue for 
25 years (easy in its collection) of 5 per cent on all imports, 
per cent on all exports, on such articles as are not pro- 
duced in any of the British provinces the 5 per cent to be 
appropriated to the payment of our foreign and domestic 
debts ; the 2 per cent for the expenses of keeping up a small 
land force and navy. A poll tax of one shilling per head on 
all whites, and two shillings on all other inhabitants, to be 
applied for granting bounties on ships built in the United 
States and on every ton of shipping employed in the fisheries. 
And, as many of our present difficulties arise from the imbe- 
cillity of the inhabitants to pay their debts that it be 
strongly recommended to each State to pass laws for paying 
off all debts contracted before the 1st of October, 1784, by 
installments of one, two, three, four and five years, giving 
security. That serious application be made for the free 
navigation of the Mississippi, according to the treaty of peace. 
That no new States be established until the public debt is 
paid off. Five hundred troops to be raised and kept in each 
State, the half on the sea coast and the other half on the 
frontiers. That three frigates of forty guns be built immedi- 
ately. Congress to be called the General Assembly of the 
United States and to sit six months in the year. 

No doubt much more is talked of, but as these seem lead- 
ing points I hand them to you ; and shall, whenever I have 
good grounds to go on, keep informing you of what I learn, 
particularly on matters of commerce. Have just heard from 
undoubted authority that a member of the Convention will 
propose next week that no slave whatever be imported into 
any of the States for the term of twenty -five years." 

TUESDAY, AUGUST 14, 1787 

IN CONVENTION 
Compensation of Members of Congress 

On this day, the Convention took up a section relat- 
ing to Congress, reported by the Committee of Detail 
as follows : 



446 THE PREAMBLE AND CONGRESS 

"The members of each House shall receive a compensa- 
tion for their services, to be ascertained and paid by the 
State, in which they shall be chosen." 

The action of the Committee was most extraordinary ; 
for this section was not only entirely contrary to a pre- 
vious vote by the Convention, but also in conflict with 
the whole theory of a National Congress under a 
National Constitution. Had it been adopted, the 
members of Congress would have been simply State 
officers. Randolph's original Resolution of May 29 
had provided that members of the first and second 
branches of the National Legislature should "receive 
liberal stipends by which they may be compensated for 
the devotion of their time to the public service", but it 
made no provision as to the source of their payment. 
When the salary of members of the House had been 
considered in the Committee of the Whole, on June 12, 
Madison moved that they receive not only "liberal" 
but "fixt" compensation, observing that it would create 
an improper dependence if provision should be made for 
them by the State Legislatures. Mason concurred. 
Franklin expressed a dislike of the word "liberal" and 
preferred "moderate." The Committee inserted 
"fixt" and struck out "liberal." William Pierce of 
Georgia then moved that "the wages should be paid 
out of the National Treasury"; and this was adopted 
without debate, Connecticut, New York, and South 
Carolina being the only States dissenting. A similar 
provision was adopted as to salaries of Senators. 

When these proposals voted by the Committee of the 
Whole had been debated by the Convention, on June 
22, Ellsworth of Connecticut, in his ardent support of 
State sovereignty, moved that payment by the States 
of salaries of members of the House be made by the 
States, instead of from the National Treasury, since 
the manners, conditions, and property prevailing in the 



TUESDAY, AUGUST 14, 1787 447 

various States differed so greatly. Sherman and Wil- 
liamson concurred, the latter observing that the new 
Western States would be poor and would have a differ- 
ent interest from the old States. The adherents of a 
strong National Government, however, argued power- 
fully against the proposed change. "If the States were 
to pay the members of the National Legislature," said 
Randolph, "a dependence would be created that would 
vitiate the whole system. The whole Nation has an 
interest in the attendance and services of the mem- 
bers." King and Wilson thought it "of great moment 
that the members of the National Government should 
be left as independent as possible of the State Govern- 
ments in all respects." Madison concurred, and also 
suggested that it would be wrong to leave the 
"members from the poorer States beyond the Moun- 
tains to the precarious and parsimonious support of 
their constituents. . . . Such provisions should be 
made as would invite the most capable and respectable 
characters into the service." Hamilton was "strenu- 
ous against making the National Council dependent on 
the Legislative rewards of the States. Those who pay 
are masters of those who are paid." Ellsworth's motion 
had been lost by the close vote of four to five Massa- 
chusetts, Connecticut, North Carolina, and South 
Carolina voting for it, and New York and Georgia 
being divided. The words "fixt stipends" had then 
been changed to "adequate compensation", the Con- 
vention deciding that the practicability of fixing the 
compensation in this Constitution should be left for 
future discussion. 

On June 26, the Convention had considered the ques- 
tion whether salaries of the Senate should "be paid out 
of the public treasury." (It may be noted that General 
Pinckney and Dr. Franklin, though for different 
reasons, 'thought that no salary at all should be 



448 THE PREAMBLE AND CONGRESS 

allowed.) 1 Ellsworth had again moved that they "be 
paid by their respective States", saying that: "If the 
Senate was meant to strengthen the Government, it 
ought to have the confidence of the States ; the States 
will have an interest in keeping up a representation, 
and will make such provision for supporting the mem- 
bers as will ensure their attendance." (It is to be 
recalled that at this stage in the sessions, the Conven- 
tion had voted that the Senate should be appointed by 
the State Legislatures but had not agreed to an equality 
of votes by the States.) Madison pointed out that 
Ellsworth's proposal would "be a departure from a 
fundamental principle, and subverting the end intended 
by allowing the Senate a duration of six years." They 
would, if this motion should be agreed to, hold their 
places "during the pleasure of the State Legislatures." 
The motion, he said, would make the Senate like the 
Congress under the Confederation, "the mere agents 
and advocates of State interests and views, instead of 
being the impartial umpires and guardians of justice and 
general good." Ellsworth's motion had then been 
defeated by another close vote of five to six (Connecti- 
cut, New York, New Jersey, South Carolina, and 
Georgia voting for it). Having thus shown that it 
believed in payment of the Senate by the National 
Government, the Convention had voted to strike out 
the words "to be paid out of the public treasury" 
evidently with the view that if nothing should be said on 
the subject, "it would silently devolve on the National 
Treasury to support the National Legislature." 2 

The Convention having thus twice expressly defeated 
Ellsworth's proposal that the States should pay the 
members of the Congress ; and having submitted to the 

1 Butler and Rutledge had also favored this in the Committee of the Whole. 
June 12. 

2 See note by Madison in the debates of June 2fc. 



TUESDAY, AUGUST 14, 1787 449 

Committee of Detail a resolution containing express 
provision for payments of members of the House "out 
of the publick treasury", it must have astonished the 
delegates to find that the rejected proposal was recom- 
mended by the Committee. And when, on August 14, 
they took up this subject, they must have been equally 
astonished to hear Ellsworth himself state that, on fur- 
ther reflection, he was satisfied "that too much depend- 
ence on the States would be produced by this mode of 
payment", and that he would move to have his own 
proposal again rejected. Mason pointed out that if 
the Committee's suggestion were accepted, both Houses 
of Congress would be made "instruments of the politics 
of the States, whatever they may be." Carroll said 
that "the new Government in the form proposed by 
the Committee was nothing more than a second edition 
of Congress (i.e., the Congress of the Confederation) in 
two volumes instead of one." Dickinson assumed that 
"all were convinced of the necessity of making the Gen- 
eral Government independent of the prejudices, pas- 
sions and improper views of the State Legislatures. . . . 
If the General Government should be left dependent on 
the State Legislatures it would be happy for us if we 
had never met in this room." The complete divergence 
between the points of view of the two factions in the 
Convention the Nationalists and the States' Rights 
adherents was fully and concisely illustrated in a 
colloquy between Luther Martin and his Maryland 
colleague, Daniel Carroll. "As the Senate is to repre- 
sent the States, the members of it ought to be paid by 
the States," said the former, to which the latter replied : 
"The Senate was to represent and manage the affairs 
of the whole and not to be t^e advocates of State inter- 
ests. They ought not to be dependent on nor paid by 
the States." The Convention then decided by the 
decisive vote of nine to two (Massachusetts and South 



450 THE PREAMBLE AND CONGRESS 

Carolina dissenting) that salaries be paid out of the 
National Treasury. 

There then arose a difficult question which had 
already been broached on June 12 and 22, and left 
undecided at that date : Should the Constitution itself 
fix the amount of the salaries? Madison had, at the 
earlier date, thought that to leave the Congress "to fix 
their own wages was an indecent thing and might, in 
time, prove a dangerous one." He suggested a salary 
fixed according to the price of wheat or some other 
standard-priced article. Ellsworth now, on August 14, 
suggested that the Constitution fix a salary of five 
dollars per day, saying that while he "was not unwilling 
to trust the Legislature with authority to regulate their 
own wages, he well knew that an unlimited discretion 
for that purpose would produce strong, tho perhaps 
not insuperable, objections," to the Constitution. G. 
Morris thought that the amount should be left to the 
discretion of Congress, as "there could be no reason to 
fear that they would overpay themselves." Sherman 
said that he was not afraid that the Congress "would 
make their own wages too high, but too low, so that 
men ever so fit could not serve unless they were at the 
same time rich"; and he favored fixing a moderate 
allowance of five dollars a day with a right in the States 
to add to it. Jacob Broom of Delaware saw no danger 
in letting Congress fix its own salaries, since the State 
Legislatures fixed their own "and no complaint had 
been made of it." Madison favored fixing in the Con- 
stitution a maximum and minimum salary, not to be 
altered by Congress. Dickinson proposed that the 
Congress should pass an act every twelve years setting 
the amount of salaries. After listening to all these 
diverse views, the Convention decisively defeated Ells- 
worth's proposal of five dollars per day, and then voted 
to vest complete power in Congress by inserting the 



TUESDAY, AUGUST 14, 1787 451 

words "to be ascertained by law." And this provision, 
so settled, became Article One, section 6, clause 1, of 
the Constitution as finally adopted. 

OUT OF CONVENTION 

Jefferson wrote from Paris, this day, to Joseph Jones 
in Virginia, advocating a form of Government such as 
the Convention was already planning. It is to be 
noted that, at this time, Jefferson particularly desired 
a Federal Judiciary : 

"I wish to see our States made one as to all foreign, and 
several as to all domestic matters, a peaceable mode of 
compulsion over the States given to Congress, and the powers 
of this body divided, as in the States, into three departments, 
Legislative, Executive, and Judiciary. It is my opinion the 
want of the latter organization has already done more harm 
than all the other Federal defects put together, and that 
every evil almost may be traced to that source ; but with all 
the defects of our Constitutions, whether general or particu- 
lar, the comparison of our Governments with those of Europe, 
are like a comparison of heaven and hell ; England, like the 
earth, may be allowed to take the intermediate station." 

On this day, also, Jefferson wrote to Washington : 

"I remain in hopes of great and good effects from the 
decision of the Assembly over which you are presiding. To 
make our States one as to all foreign concerns, preserve them 
several as to all merely domestic, to give to the Federal head 
some peaceable mode of enforcing its just authority, to 
organize that head into Legislative, Executive, and Judiciary 
departments, a great desiderata in our Federal Constitution. 
Yet, with all its defects, and with all these of our particular 
Governments, the inconveniences resulting from them are 
so light, in comparison with those existing in every other 
Government on earth, that our citizens may certainly be 
considered as in the happiest political situation which exists." 

To Adams, he wrote later (August 30) that except 
for the adoption of a secrecy rule by the Convention, he 



452 THE PREAMBLE AND CONGRESS 

had no doubt that "all their other measures will be good 
and wise. It is really an assembly of demigods." l 
General Knox wrote, this day, to General Washington : 

"Influenced by motives of delicacy I have hitherto for- 
borne the pleasure, my dear Sir, of writing to you since my 
return from Philadelphia. I have been apprehensive that 
the stages of the business of the Convention might leak out, 
and be made an ill use of, by some people. I have therefore 
been anxious that you should escape the possibility of impu- 
tation. But as the objects seem now to be brought to a point, 
I take the liberty to indulge myself in communicating with 
you. Although I frankly confess that the existence of the 
State Governments is an insuperable evil in a National point 
of view, yet I do not see how in this stage of the business they 
could be annihilated and perhaps, while they continue, 
the frame of Government could not with propriety be much 
higher toned than the one proposed. It is so infinitely 
preferable to the present Constitution, and gives such a bias 
to a proper line of conduct in future that I think all men 
anxious for a National Government should zealously embrace 
it. The education, genius, and habits of men on this Con- 
tinent are so various even at this moment, and of consequence 
their views of the same subject so different, that I am satis- 
fied with the result of the Convention, although it is short 
of my wishes and of my judgment. But when I find men of 
the purest intentions concur in embracing a system which, on 
the highest deliberation, seems to be the best which can be 
obtained, under present circumstances, I am convinced of 
the propriety of its being strenuously supported by all those 
who have wished for a National Republic of higher and more 
durable powers. I am persuaded that the address of the 
Convention to accompany their propositions will be couched 
in the most persuasive terms. I feel anxious that there 
should be the fullest representation in Congress, in order that 
the propositions should receive their warmest concurrence 
and strongest impulse." 

1 Jefferson wrote, Aug. 15, 1787, to Count del Verni that : "Doctor Franklin and 
other the greatest characters of America are members of it." Doc. Hist., IV, 252. 



CHAPTER EIGHT 

POWERS OF CONGRESS 

August 15 ... The Veto Power 

August 16 . . . Taxing Power General Welfare Clause 

August 17 . . . Miscellaneous Powers of Congress 

August 18 . . . Congress and the Army and Navy 

(August 19) . . (Sunday) 

August 20 ... Necessary and Proper Clause Treason 

August 21 ... Direct Taxes 

August 22 ... Restraints on the Powers of Congress 

August 23 ... Congress and the Militia 

WEDNESDAY, AUGUST 15, 1787 

IN CONVENTION 
Presidential Veto 

The Convention had by this time disposed of most 
of the provisions regulating the two Houses of Congress. 
Two only remained for consideration ; one, the question 
whether the Senate should have power equally with 
the House to originate money bills, was postponed (see 
infra under date of September 8) ; the other was the 
important question, how far a bill passed by the two 
Houses should be subject to Executive veto. Under 
the original vote by the Committee of the Whole, on 
June 4, the President was given power of veto, and "on 
a motion for enabling two thirds of each branch of the 
Legislature to overrule the revisionary check, it passed 
in the affirmative." The power was stated as follows, 
in the Report of the Committee of the Whole on Ran- 
dolph's Resolution, on June 13 : 



454 POWERS OF CONGRESS 

"Resolved, that the National Executive shall have a right 
to negative any Legislative Act which shall not be after- 
wards passed by two thirds of each branch of the National 
Legislature." 

As adopted by the Convention on July 21, it read : 

"Resolved, that the National Executive shall have a right 
to negative any Legislative Act which shall not be afterwards 
passed, unless by two third parts of each branch of the Na- 
tional Legislature." 

It seems clear that the intention was that the two 
thirds required should be two thirds of the entire mem- 
bership of each branch. A similar requirement for two 
thirds in connection with another subject was undoubt- 
edly interpreted as meaning two thirds of the whole 
membership. Thus, on July 18, Madison moved that 
the Judges should be nominated by the Executive, 
" and such nominations should become an appointment 
if not disagreed to within days by two thirds of the 
second branch." On July 21, Madison argued that "in 
case of any flagrant partiality or error in the nomina- 
tion, it might be fairly presumed that two thirds of the 
second branch would join in putting a negative on it." 
Gerry said that it appeared to him, "a strong objection 
that two thirds of the Senate were required to reject a 
nomination of the Executive." Madison "observed 
that he was not anxious that two thirds should be neces- 
sary to disagree to a nomination. ... He was content 
to obviate the objection last made and accordingly so 
varied the motion as to let a majority reject." Though 
the motion was lost, it is clear that both Madison and 
Gerry were referring to two thirds of the whole Senate 
and to a majority of the whole Senate, and not to two 
thirds or a majority of a quorum of the Senate. When, 
however, the Committee of Detail made its Report, on 
August 6, it introduced an element of doubt in connec- 



WEDNESDAY, AUGUST 15, 1787 455 

tion with the two thirds requirement in the veto power. 
In formulating this power, the Committee adopted, 
almost verbatim, the provisions of the Massachusetts 
State Constitution as to the manner in which the Presi- 
dent should return the bill with his objections to the 
House, in which it originated : l 

"But if after such reconsideration, two thirds of that 
House shall, notwithstanding the objections of the President, 
agree to pass it, it shall, together with his objections be sent 
to the other House, by which it shall likewise be reconsidered, 
and if approved by two thirds of the other House also, it shall 
become a law/' 

In the same Report, however, the Committee pro- 
vided also that: "In each House, a majority of the 
members shall be a quorum to do business." This gave 
rise to a doubt as to the interpretation of the words 
"two thirds of that House" in the previous clause. 
Did they mean two thirds of the total membership of 
the House, or two thirds of the quorum ? 

On this August 15, the Convention took up this veto 
power. Madison, for the third time, attempted to 
obtain sanction for his favorite plan of associating the 
Judges with the President in a revision of bills passed 
by the Legislature. His motion was again opposed by 
Gerry, Charles Pinckney, and Sherman, the latter two 
stating that they "disapproved of Judges meddling in 
politics and parties." And it was defeated by a vote 
of eight States to three. G. Morris now again advo- 
cated giving to the President an absolute and unlimited 
veto power; for he felt that with a President elected 
by Congress (as at that stage of the Convention it was 

1 The Massachusetts State Constitution of 1780 provided that: "If after such 
consideration, two thirds of the said Senate or House of Representatives shall, not- 
withstanding the said objection, agree to pass the same, it shall, together with the 
objections, be sent to the other branch of the Legislature, where it shall also be 
reconsidered, and if approved by two thirds of the members present, shall have the 
force of law." See also the New York Constitution of 1777. 



456 POWERS OF CONGRESS 

provided), "the tendency of the Legislative authority 
to usurp on the Executive" would not be sufficiently 
checked by a limited veto capable of being overridden 
by the Congress. Wilson also was "most apprehensive 
of a dissolution of the Government, from the Legisla- 
ture swallowing up all the other powers"; he feared 
that they had not guarded "against the danger on this 
side by a sufficient self-defensive power either to the 
Executive or Judiciary Department." As this subject 
had already been discussed very thoroughly on several 
occasions, the delegates became impatient at any sug- 
gestions for further debate. Rutledge "complained of 
the tediousness of the proceedings"; Ellsworth said 
that "we grow more and more skeptical as we proceed", 
and that "if we do not decide soon, we shall be unable 
to come to any decision." Williamson, however, shar- 
ing the views that the President's power needed to be 
strengthened, moved that three fourths of each House 
be required to overrule a veto instead of two thirds, 
and this proposal was accepted. A month later, on 
September 12, in the closing days of the Convention, 
Williamson moved to reconsider his own proposal, 
which, he said, "puts too much power in the President." 
As the Convention had, by that date, agreed to election 
of the President by electors instead of by Congress, it 
became less necessary to guard against encroachments 
by Congress on the Presidential power. Accordingly, 
he moved to restore the two thirds requirement. G. 
Morris opposed the motion. He dwelt on "the danger 
to the public interest from the instability of the laws", 
as the greatest evil to be guarded against ; and he stated 
that : "It is the interest of the distant States to prefer 
three fourths, as they will be oftenest absent and need 
the interposing check of the President." And, said he, 
sagely, "the excess rather than the deficiency of laws 
was to be dreaded." Williamson also said that he was 



WEDNESDAY, AUGUST 15, 1787 457 

"less afraid of too few than of too many laws", but that 
he was "most of all afraid that the repeal of bad law 
might be rendered too difficult by requiring three 
fourths to overcome the dissent of the President." 
Hamilton stated that, as a matter of fact, in New York 
two thirds "had been ineffectual either where a popular 
object or a Legislative faction operated." Madison 
again emphasized the danger of Legislative injustice and 
encroachments. Mason, on the other hand, said that 
his "leading view was to guard against too great impedi- 
ment to the repeal of laws." Reconsideration was 
finally voted, and the requirement of two thirds of each 
House of Congress was restored. 

No delegate seems at that time to have raised the 
question whether the two thirds meant two thirds of 
the whole membership of each House or only two thirds 
of a quorum or of those members present. It is evident, 
however, that G. Morris considered that two thirds of 
the whole membership was to be required, for in the dis- 
cussion, he said : " Considering the difference between 
the two proportions numerically, it amounts in one 
House to two members only ; and in the other to not 
more than five according to the numbers of which the 
Legislature is at first to be composed." And Mason 
said : "As to the numerical argument of Mr. Gouver- 
neur Morris, little was necessary to understand that 
three fourths was more than two thirds, whatever the 
numbers of the Legislature might be." Clearly, these 
two delegates believed that the two thirds was to be 
two thirds of the whole House, for they referred only 
to the "numbers" of which the whole Legislature was 
to be composed. The numbers of the House had been 
fixed at sixty -five, of which two thirds would be forty- 
four and three fourths would be forty -nine a differ- 
ence of five, as pointed out by Morris. On the theory 
that a proportion of a quorum was all that was to be 



458 POWERS OF CONGRESS 

required (a quorum being thirty-three), two thirds 
would be twenty -two and three fourths would be twenty- 
five a difference of but three which would not at 
all agree with Morris* figuring. And that two thirds 
of the whole number were required to override a veto 
and to adopt a Constitutional Amendment was stated 
explicitly by G. Morris, in a letter written by him in 
1804. 1 Luther Martin evidently shared the same view, 
for later, in a criticism of the Presidential veto provi- 
sion he said : "It was urged that even if he was given a 
negative, it ought not to be of so great extent as that 
given by the system, since his single voice is to counter- 
vail the whole of either branch, and any number less 
than two thirds of the other." 2 So far as the debates 
show, it would appear that the delegates intended to 
require two thirds of the whole membership of the 
House finally considering the veto. And it may be 
noted, also, that though the New York and the Massa- 
chusetts State Constitutions contained the words "if 
approved by two thirds of the members present", and 
though the Committee of Detail copied, in its Report, 
the rest of the provision in these State Constitutions 

1 Life of Gouverneur Morris (1832), by Jared Sparks, III, 198, Morris to Uriah 
Tracy, Jan. 5, 1804 : "There remain three cases in which two thirds of the whole 
number are required. These are, first, the expulsion of a member ; secondly, the 
passage of a law disapproved of by the President; and thirdly, amendments to 
the Constitution. In these three cases a provision is carefully made to defend the 
people against themselves, or, in other words, against that violence of party spirit, 
which has hitherto proved fatal to republican government. The constitutional 
restriction presumes, that to a measure of indispensable necessity, or even of great 
utility, two thirds of the whole number of Senators and Representatives would 
agree, and that, if they should not, no great danger would ensue. The public busi- 
ness might go on, though a member of the legislature should be unworthy of his seat. 
Neither would the Union materially suffer from the want of a particular law, 
especially of a law rejected by the first magistrate." 

2 The Genuine Information (1788), by Luther Martin. On the other hand, 
Daniel Carroll of Maryland may have understood that only two thirds of the 
quorum was required, for on August 15, 1787, arguing for a greater Presidential 
veto power, he said : " When the negative to be overruled by two thirds only was 
agreed to, the quorum was not fixed. He remarked that as a majority was now to 
be the quorum, seventeen in the larger and eight in the smaller house might carry 
points." 



WEDNESDAY, AUGUST 15, 1787 459 

almost verbatim, it apparently deliberately omitted the 
words "by two thirds of the members present" and 
substituted "by two thirds of the other House." 

It is also to be noted that the delegates were fully 
aware of the difference between two thirds of the mem- 
bership, and two thirds of the members present ; for on 
five distinct subjects, they expressly used the words "of 
the members present." (1) The Report of the Com- 
mittee of Eleven, on September 4, as to the treaty- 
making power provided specifically that: "No treaty 
shall be made without the consent of two thirds of the 
members present." This remained unaltered in the 
Report of the Committee of Style, on September 12, 
and in the final draft of the Constitution. Referring 
to this provision, Gerry, on September 8, pointed out 
that two thirds of the members present a majority 
being a quorum might make it possible for a treaty 
to be passed by a representation of not one fifth of the 
people ; and he moved that : " No treaty be made with- 
out the consent of two thirds of all the members of the 
Senate." Sherman also moved "that no treaty be 
made without a majority of the whole number of the 
Senate." Both motions were rejected. Madison 
moved that a quorum of the Senate consist of two thirds 
of all the members. This also was rejected. Hence, 
it appears that the delegates knew how to say "mem- 
bers present" when they meant "members present." 
(2) The Report of the Committee of Eleven, on September 
4, as to trial of impeachments by the Senate, provided 
that: "No person shall be convicted without the con- 
currence of two thirds of the members present." This 
remained unaltered in the Report of the Committee of 
Style on September 12, and in the final draft of the 
Constitution. (3) The Report of the Committee of 
Detail of August 6 provided in Article VI, section 7, 
that: "The yeas and nays of the members of each 



460 POWERS OF CONGRESS 

House, on any question, shall at the desire of one fifth 
part of the members present, be entered on the journal." 
This was repeated unchanged in the Report of the 
Committee of Style on September 12 and in the final 
draft of the Constitution. (4) On August 24, in the 
debate on the election of the President by the Legisla- 
ture, Charles Pinckney moved to insert: "to which 
election a majority of the votes of the members present 
shall be required." (5) The Report of the Committee 
of Detail on August 6 provided in Article XVII that : 
"New States . . . may be admitted by the Legislature 
into this Government ; but to such admission the con- 
sent of two thirds of the members present in each House 
shall be necessary." This provision was never voted 
on, since a substitute was proposed on August 29. 

It is interesting to note also that a requirement for a 
vote of more than a majority had been proposed in 
connection with other subjects during the debates. 
Thus, on August 21, in the debate over prohibition 
against export duties, Madison moved that the clause 
reported by the Committee of Detail, on August 6, be 
amended, by inserting after the words, "no tax or duty 
shall be laid by the Legislature on articles exported from 
any States", the words, "unless by consent of two 
thirds of the Legislature." Langdon had already sug- 
gested "requiring the concurrence of two thirds or 
three fourths of the Legislature." The motion was 
lost; but it would seem that Madison intended two 
thirds of the whole Legislature and not two thirds of a 
quorum or of those present; for his intention was to 
protect the Southern States from export duties imposed 
by a majority of the Northern States the latter not 
having a two thirds representation in the House or 
Senate. But if only two thirds of a quorum was meant, 
Madison's object would not have been obtained; for 
it was wholly possible that the Northern States might 



WEDNESDAY, AUGUST 15, 1787 461 

at any time have two thirds of a quorum in both House 
and Senate. The same considerations apply to a mo- 
tion, on August 29, by Charles Pinckney, that : " No 
Act of the Legislature for the purpose of regulating the 
commerce of the United States with foreign powers 
or among the several States shall be passed without the 
assent of two thirds of the members of each House." 
There is evidence as to what he meant by "two thirds 
of the members of each House" ; for McHenry in his 
Notes states that on August 24, "Mr. C. Pinckney gave 
notice that he would move that the consent of three 
fourths of the whole Legislature be necessary to the 
enacting of a law respecting the regulation of trade or 
the formation of a navigation act." 1 On the other 
hand, a similar motion by George Mason on September 
15, that: "No law in nature of a navigation act be 
passed before the year 1808 without the consent of 
two thirds of each branch of the Legislature" seems to 
have been interpreted differently by Mason himself, for 
McHenry iri his Notes states that : "Mr. Mason moved 
in substance that no navigation act be passed without 
the concurrence of two thirds of the members present in 
each House' 9 ; and Mason himself in the objections 
which he formally embodied to the State of Virginia, 
after the signing of the Constitution, wrote : 2 

"By requiring only a majority to make all commercial 
and navigation laws, the five Southern States (whose produce 
and circumstances are totally different from those of the 
eight Northern and Eastern States) will be ruined . . . 
whereas, requiring two thirds of the members present in both 
Houses, would have produced mutual moderation, promoted 

1 It is to be noted, however, that in Randolph's first draft of a Constitution in 
the Committee of Detail, he had a clause amended in Rutledge's handwriting : "A 
navigation act shall not be passed but with the consent of two thirds of the members 
present of the Senate and the like number of the House of Representatives." See 
The Growth of the Constitution (1900), by William M. Meigs. 

2 Elliot's Debates, I, 495. 



462 POWERS OP CONGRESS 

the general interest, and removed an insuperable objection 
to the adoption of the government." 

In connection with the question of the meaning of 
two thirds of the whole membership, there may be cited 
Madison's remark in the debate on August 10, over the 
question of the power of the branches of the Legislature 
to expel members. In the Report of the Committee of 
Detail of August 6, it had been provided that : "Each 
House may determine the rules of its proceedings ; may 
punish its members for disorderly behaviour ; and may 
expel a member." It had also been provided that : 
"In each House, a majority of the members shall con- 
stitute a quorum to do business." This latter section 
had been agreed to by the Convention ; but as to the 
former section, Madison "observed that the right of 
expulsion was too important to be exercised by a bare 
majority of a quorum ; and in emergencies might be 
dangerously abused " ; and he moved accordingly, that 
"with the concurrence of two thirds" might be inserted 
between "may" and "expel." This was voted; and 
in the final draft of the Constitution it became part of 
Article I, section 3. 

The practical construction by Congress itself of the 
intention of the framers has differed from the interpre- 
tation given by G. Morris in 1804 ; arid the whole ques- 
tion was finally settled, in 1919, by the Supreme Court 
in Missouri Pacific Railroad v. Kansas (248 U. S. 276) 
a case involving the passage of the Webb-Keiiyoii 
liquor law of 1913 in which case, it was held that a 
Presidential veto might be overridden by a vote of two 
thirds of the members present, even if such vote did not 
constitute two thirds of the whole membership. 1 

One other question has arisen in connection with the 
veto power. 

1 For a complete consideration of the whole veto question, see The Veto Power 
(1890), by Edward Campbell Mason. 



WEDNESDAY, AUGUST 15, 1787 463 

Following a similar clause in the Constitution of 
Massachusetts, the Committee of Detail provided that : 
"If any bill shall not be returned by the President 
within seven days after it shall have been presented to 
him, it shall be a law, unless the Legislature, by their 
adjournment, prevent its return ; in which case it 
shall not be a law." The Convention accepted this 
provision, after changing "seven days" to ten. The 
Committee of Style, in its Report of September 12, 
slightly modified it, so as to read as it appears in the 
final draft of the Constitution in Article I, section 7 : 

"If any bill shall not be returned by the President within 
ten days (Sundays excepted) after it shall have been pre- 
sented to him, the same shall be a law, in like manner as if 
he had signed it, unless the Congress by their adjournment 
prevent its return in which case it shall not be a law." 

It has been held by the Court of Claims (though 
not as yet by the Supreme Court) that an "adjourn- 
ment" of a session of the Congress as well as a final 
adjournment of the Congress will cause a bill to fail 
to become a law, if it is not signed by the President 
within ten days after it shall have been presented to 
him. 1 

OUT OF CONVENTION 
The Gazette said this day : 

"It is to be hoped (says another correspondent) that the 
Convention will not lessen the safety, dignity or usefulness of 
their present Government by any imprudent accommodation 
to the present temper or prejudices of the uninformed part 
of the community. It is on wise and good men only they 
can depend to support their measures. They ought to be 

1 Since, affirmed in The Okanogan, etc. Tribes v. United States (1929) 279 U. S. 655. 
In La Abia, etc. Co. v. United States (1899) 1-78 U. S. 423, it was held that the Presi- 
dent may sign a bill during a recess of Congress, and in Edwards v. United States 
(1932) 286 U. S. 482, after adjournment of Congress, if signature is within ten days 
of presentation of the bill. 



464 POWERS OF CONGRESS 

pleased their principles ought to be consulted or they 
cannot concur in establishing the new Government." 

Washington wrote, this day, to Lafayette : 

"The present expectation of the members is, that it will 
end about the first of next month ; when, or as soon after as it 
shall be in my power, I will communicate the result of our 
long deliberation to you. . . . The disturbances in Massa- 
chusetts have subsided ; but there are seeds of discontent 
in every part of this Union, ready to produce other disorders 
if the wisdom of the present Convention should not be able 
to devise, and the good sense of the people be found ready to 
adopt, a more vigorous and energetic Government, than the 
one under which we now live ; for the present, from experience, 
has been found too feeble and inadequate to give that security 
which our liberties and property render absolutely essential, 
and which the fulfillment of public faith loudly requires. 
Vain is it to look for respect from abroad, or tranquillity at 
home vain is it to murmur at the detention of our Western 
Posts, or complain of the restriction of our commerce vain 
are the attempts to remedy the evil complained of by Mr. 
Dumas to discharge the interest due on foreign loans, or 
satisfy the claims of foreign officers, the neglect of doing 
which is a high impeachment of our National character, and 
is hurtful to the feelings of every well wisher to this Country, 
in and out of it vain is it to talk of chastising the Algirenes, 
or doing ourselves justice in any other respect, till the 
wisdom and force of the Union can be more concentrated, 
and better applied." 

THURSDAY, AUGUST 16, 1787 

IN CONVENTION 
The Taxing Power and the General Welfare Clause 

The Convention now took up the powers which 
should be vested in Congress. It will be recalled that 
instead of the very broad outline of authority thereto- 
fore voted by the Convention, the Committee of Detail 



THURSDAY, AUGUST 16, 1787 465 

reported eighteen specific powers. The first of these 
was that which constituted the vital and essential spark 
in the new system of Government authority in Con- 
gress to levy and collect taxes. Without this power, 
any Government of any description is helpless. 
Rightly did the advocates of the Constitution in the 
Virginia State Convention of 1788 describe it as the 
" lungs", the "nerves", the "soul" of the new Govern- 
ment. Ability to function depends on ability to obtain 
the means for functioning. It is a farce, said Randolph, 
to give power to a Government and to withhold the 
means of executing. Hitherto, the United States had 
been dependent, for the payment of its debts, upon 
voluntary compliance by the States with requisitions 
for funds made upon them by Congress. Congress had 
no power to levy taxes upon the individual citizens to 
obtain such funds to pay debts. Neither had it any 
power to force the States to levy taxes or otherwise 
comply with requisitions. Hence, it had, for some 
time, become evident to those who sought to "render 
the Federal Constitution adequate to the exigencies of 
Government and the preservation of the Union", in the 
words of the vote of Congress of February 21, 1787 
both to those who wished only to amend the Articles, 
as well as to those who wished to frame an entirely new 
Government that the one absolutely necessary func- 
tion to be imparted was that of taxation. 1 Even the 
New Jersey Plan submitted by Paterson, June 15, 
granted to Congress power to "pass acts for raising a 
revenue" by laying import duties and by stamp taxes. 
Accordingly, when the Committee of Detail drafted 
the Article conferring specific and limited authority 
upon Congress, the very first power so vested was : 

1 Ezra Stiles, President of Yale College, recorded in his diary, Dec. 21, 1787: 
''It appeared that they were pretty unanimous in the following ideas . . . that a 
certain portion or degree of dominion as to laws and revenue . . . was necessary 
be ceded by individual States to the authority of the National Council." 



466 POWERS OF CONGRESS 

"The Legislature of the United States shall have the 
power to lay and collect taxes, duties, imposts and 
excises" (excepting by a later provision, export duties 
and taxes or duties on import or migration of slaves). 
So clear was the necessity of this provision, that the 
Convention, on this August 16, voted for it with no 
State dissenting. 1 The power would probably have 
remained as phrased on that day, if it had not been for 
the anxiety of the delegates on another subject an 
anxiety productive of a change which has caused this 
General Welfare Clause to be a bone of contention. 
So vigorously contested has been its interpretation 
during the political and constitutional history of this 
country, and so grave has been, and still may be, its 
effect upon that history, that a detailed description of 
the manner in which its final phraseology was arrived 
at is absolutely necessary for its proper comprehension. 
Two days after this power to tax had been agreed to 
by the Convention, Rutledge and Charles Pinckney of 
South Carolina, and Gerry and King of Massachusetts 
called attention (on August 18) to the fact that the new 
frame of a Constitution contained no specific provision 
for payment of the already incurred public debt ; and 
Pinckney moved to confer two additional powers upon 
Congress, viz. : " to secure the payment of the public 
debt", and "to secure all creditors under the new Con- 
stitution from a violation of the public faith when 
pledged by the authority of the Legislature." This 
motion was referred to the Committee of Detail. Rut- 
ledge then moved that a Grand Committee (of one 
delegate from each State) be appointed to consider the 
necessity and expediency of assumption by the United 
States of all the State debts, since such debts had been, 

1 In the closing sessions of the Convention, on September 14, the following clause 
was added, without debate or dissent: "but all such duties, imposts and excises 
shall be uniform through the United States." 



THURSDAY, AUGUST 16, 1787 467 

he said, "contracted in the common defence/' 1 As the 
States were to be called on now to surrender to the 
United States their rights to tax imports, it would be 
politic to conciliate them to the new Constitution, "by 
disburdening the people of the State debts." King 
also remarked that "besides the consideration of jus- 
tice and policy . . . the State creditors, an active and 
formidable party, would otherwise be opposed to a plan 
which transferred to the Union the best resources of the 
States without transferring the State debts at the same 
time." The State creditors had generally been "the 
strongest foes to propositions in the past to give to 
Congress power to levy impost duties." The Grand 
Committee, appointed under Rutledge's motion, re- 
ported, three days later (August 21), through Gover- 
nor William Livingston of New Jersey, recommending 
the following new power : 

"The Legislature of the United States shall have power to 
fulfill the engagements which have been entered into by 
Congress, and to discharge as well the debts of the United 
States, as the debts incurred by the several States during 
the late war, for the common defence and general welfare." 

It was in this Report, and in connection with engage- 
ments and debts already incurred, that the phrase "for 
the common defence and general welfare" thus first 
occurred in connection with any specific provision of 
the new Constitution. The proposal was debated, on 
August 2. Ellsworth thought the power unnecessary, 
since the United States, having entered into engage- 
ments by Congress as their agents, "will hereafter be 
bound to fulfil them by their new agents." Randolph, 
on the other hand, thought that "though the United 

1 The Committee consisted of : John Langdon of New Hampshire, Rufua King 
of Massachusetts, Roger Sherman of Connecticut, William Livingston of New 
Jersey, George Clymer of Pennsylvania, John Dickinson of Delaware, James 
McHenry of Maryland, George Mason of Virginia, Hugh Williamson of North 
Carolina, Charles C. Pinckney of South Carolina, and Abraham Baldwin of Georgia. 



468 POWERS OF CONGRESS 

States will be bound, the new Government will have 
no authority in the case, unless it be given them" 
a striking, though erroneous statement of the view that 
there would have been no implied power to pay prior 
debts. Madison thought the power should be given in 
order "to prevent misconstruction"; and Gerry also 
thought it "essential that some explicit provision should 
be made ... so that no pretext might remain for get- 
ting rid of the public engagements." It is evident that 
the delegates were imbued with an intense feeling that 
there should be no doubt as to the fulfillment by the new 
Government of its obligation to creditors. Repudia- 
tion, scaling down of debts, and payment in depreciated 
currency had been rampant in some States; and the 
delegates were determined that it should be made clear 
in the new Constitution that no one should question the 
integrity of the new Government. Accordingly, G. 
Morris moved that instead of authorizing Congress, the 
Constitution should require Congress to pay the debts, 
as follows: "The Legislature shall discharge the debts 
and fulfil the engagements of the United States." And 
this motion was carried, without a dissenting vote. 

It will be noted that the new clause reported by Gov- 
ernor Livingston included a power in Congress to pay 
State debts hitherto incurred, as well as United States 
debts. Neither on August 21, 22, nor 23 was there 
any motion made on this question of State debts, nor 
any debate (save a speech by Gerry, on August 21, 
opposing the proposal as likely to excite great opposition 
to the Constitution on the part of the States which had 
already done the most to clear off their debts). 1 

1 It is to be noted that Elbridge Gerry, in a speech in the House, Feb. 25, 1790 
(Annals of Congress, 1st Cong., *2d Sess., p. 1360), said that the provision for assump- 
tion of State debts would have been accepted by the Convention if it had applied to 
debts already paid off by the States; see also speech of Madison in the House, 
April 22, 1790. 

Alexander Hamilton wrote to Edward Carrington, May 26, 1792: "The ques- 
tion of an assumption of the State debts by the United States was in discussion when 



THURSDAY, AUGUST 16, 1787 469 

As to the debts of the United States, the Convention, 
on August 23, voted to prefix to the taxing power sec- 
tion already adopted by it on August 22, a provision 
requiring Congress to pay these debts, as follows : 

"The Legislature shall fulfil the engagements and dis- 
charge the debts of the United States and shall have the 
power to lay and collect taxes, duties, imposts and excises." 

And the clause as so amended was agreed to. Pierce 
Butler of South Carolina asked for a reconsideration so 
as to provide for discrimination between payment of 
debts to original holders of securities and payment to 
"bloodsuckers who had speculated on the distresses of 
others and bought up securities at heavy discounts"; 
the question was accordingly reopened on August 25. 
He wanted to leave the door open to the Government 
to buy up the securities and he feared lest the require- 
ment that it shall discharge the debts would preclude 
it from doing anything but pay them in full. He also 
feared lest the provision might be deemed to extend to 
all the old Continental paper, payment of some of which 
had been expressly repudiated except at the depreciated 
ratio of forty to one. It is important to notice the 
arguments; for they illustrated the great confusion 
which later existed in the debates in the State Conven- 
tions over the adoption of the Constitution. The many 
misunderstandings on the subject of these old debts 
and the effect of the new Constitution upon them led 
to much of the opposition to ratification. Mason now 
made the objection that "the use of the word shall will 
beget speculation and increase the pestilent practice 

the Convention that framed the present Government was sitting at Philadelphia* 
and in a long conversation with Mr. Madison in an afternoon's walk, I well remem- 
ber that we were perfectly agreed on the expediency and propriety of such a 
measure ; though we were both of opinion that it would be more advisable to make 
it a measure of administration than an article of Constitution, from the impolicy of 
multiplying obstacles to its reception on collateral details." Works nf Alexander 
Hamilton (Lodge's ed.), IX, 515. 



470 POWERS OF CONGRESS 

of stockjobbing" ; and pointed out that there was "a 
great distinction between original creditors and those 
who purchased fraudulently of the ignorant and dis- 
tressed." He admitted, however, that those who 
bought Government securities in the open market, even 
at a depreciation, might be entitled to payment of the 
face value, though there would be a difficulty in drawing 
the line in such cases. Gerry and G. Morris opposed 
Mason's view ; they still thought that there should be 
an express requirement of Congress to pay the debts 
and doubted whether the public faith would admit of 
anything but payment of the full face value ; and lest 
the charge should be made against them that they were 
actuated by personal and interested motives, G. Mor- 
ris stated that he, himself, "never had become a pub- 
lic creditor, that he might urge with more propriety 
the compliance with public faith", and Gerry said that 
"for himself he had no interest in the question, being 
not possessed of more of the securities than would, by 
the interest, pay his taxes." 1 The matter was finally 
adjusted by a compromise clause, suggested by Ran- 
dolph and favored by Butler of South Carolina and 
Johnson of Connecticut, which, instead of imposing a 
requirement on Congress, presented a solemn declara- 
tion that : 2 

"All debts contracted and engagements entered into by or 
under the authority of Congress shall be as valid against the 

1 Charles A. Beard in his An Economic Interpretation of the Constitution (1913), 
p. 97, gives figures which would apparently show that Gerry owned at some time 
considerable amounts of securities issued by the Massachusetts and the Pennsyl- 
vania Loan Offices, but it does not appear that he owned them at this date ; and 
writing in the Massachusetts Centinel, Jan. 5, 1788, in reply to charges made by 
Ellsworth in Connecticut Courant, Dec. 24, 1787, Gerry denied that he owned "the 
value of ten pounds in Continental money" or that he had exchanged Continental 
for State securities. 

2 The Committee on Style, on September 12, proposed a slight change whereby 
"by or under the authority of Congress" became "before the adoption of this Con- 
stitution." This was necessary because the word "Congress" might refer to either 
the Congress of the Confederation or the Congress of the Constitution. In this 
form, it became Article VI, clause one, of the final Constitution. 



THURSDAY, AUGUST 16, 1787 471 

United States under this Constitution as under the Confed- 
eration." 

The whole intent of this provision was to leave to 
creditors, after the Constitution should be adopted, 
precisely the same rights as they had before ; and 
neither to increase nor to diminish those rights. It is 
highly important to note this fact that the Constitution 
made absolutely no change in the status of the Govern- 
ment debt, but left the public creditors in exactly the 
same legal position in which they were under the Con- 
federation. Congress, after the adoption of the new 
Constitution, would have no greater (and no less) obli- 
gation to redeem the Government securities than it 
had prior to that adoption. The power of Congress to 
pay in full or to scale down the debt as to purchasers 
of securities at a discount remained unaffected by this 
provision in the Constitution. 1 When, however, the 
ratification of the Constitution was debated in the 
State Conventions, a wrong interpretation was placed 
on this clause ; and much of the opposition to the Con- 
stitution itself was based on the mistaken view that 
security holders were given by it a privileged position. 
And, in recent years, the same mistaken idea has given 
rise to the theory that the delegates framed the Consti- 
tution, in this respect, to favor the propertied class. 
The fact was that the new Congress was as free to deal 
with the subject under the new Government as under 
the old, either to pay in full at the face value, or not, as 
it should deem right and equitable. The only differ- 

1 Thus, Madison said in the Virginia State Convention that this clause meant 
that "there should be no change with respect to claims by this political alteration, 
and that the public would stand, with respect to their creditors, as before. He 
thought that the validity of claims ought not to diminish by the adoption of the 
Constitution. But, however, it could not increase the demands on the public." 
And George Nicholas said : "The new Government will give the holders the same 
power of recovery as the old one. . . . On the will of Congress alone the payment 
depends. Cannot they decide according to real equity?" Elliot's Debates, III, 
471-473, 476, 480. 



472 POWERS OF CONGRESS 

ence was that the new Congress was to have the finan- 
cial resources with which to pay both old and new 
debts; whereas, before, owing to failure of the States 
to pay their quotas, it lacked such means. 

Having eliminated the express requirement on Con- 
gress to pay the debts of the United States, the question 
now was presented whether there ought not to be an 
express provision that the taxes which the Convention 
had empowered Congress to lay, might be laid for the 
purpose of paying these old debts. The Committee of 
Detail, on August 22, had already reported (with refer- 
ence to the motions made by Charles Pinckney, on 
August 18) that it was desirable to add to the first clause 
of section 1 of the Legislative Article, the words : "for 
payment of the debts and necessary expenses of the 
United States." Pillowing out this idea, and concur- 
ring with Randolph's view as to the necessity of an 
express power, Sherman of Connecticut, on August 25, 
stated that he "thought it necessary to connect with 
the clause for laying taxes, duties, etc., an express pro- 
vision for the object of the old debts " ; and accordingly, 
he moved to add to the power "to levy and collect taxes, 
duties, imposts and excises", the words "for the pay- 
ment of said debts and for the defraying the expences 
that shall be incurred for the common defence and 
general welfare." This proposal was intended to cover 
future expences as well as past debts (although the 
words "said debts" were ambiguous, since no reference 
to any "debts" was contained in the clause as it then 
stood). This motion, however, was defeated "as being 
unnecessary" (according to Madison's report); and 
this action apparently showed that the Convention dis- 
agreed with Randolph's belief that the Congress would 
have no implied power to pay the old debts by means of 
a levy of taxes. It would seem that this action should 
have finally disposed of the whole subject. But there 



THURSDAY, AUGUST 16, 1787 473 

still remained to be acted upon that portion of Governor 
Livingston's report of August 21 giving to Congress 
power to assume payment of State debts incurred dur- 
ing the War. As the Convention had taken no action 
on this, it was referred, on August 31 (together with all 
other matters not acted upon), to a Committee of 
eleven, headed by Judge Brearley of New Jersey. This 
Committee made a report on September 4, in which, 
ignoring the question of payment of State debts by 
Congress, it recommended the very change proposed by 
Sherman on August 25, but rejected by the Conven- 
tion as unnecessary ; viz., that the first clause of the 
section granting powers should read : 

"The Legislature shall have power to lay and collect taxes, 
duties, imposts and excises, to pay the debts and provide for 
the common defence and general welfare of the United 
States." 

This restored the express power to levy taxes for the 
purpose of paying the prior debts of the United States, 
which both Randolph and Sherman had previously 
stated that they considered to be a necessary provision. 
The clause thus changed was agreed to by the Conven- 
tion without debate or dissent, on this same day, Sep- 
tember 4. It is clear that the phrase "to pay the 
debts" referred solely to the prior debts of the United 
States and not to those which might be incurred by 
Congress under the new Constitution in the exercise of 
the new powers vested in it by that instrument. For, 
as Madison wrote later : 1 

"A special provision in this mode could not have been 
necessary for the debts of the new Congress ; for a power to 
provide money and a power to perform certain acts, of which 
money is the ordinary and appropriate means, must, of course, 
carry with them a power to pay the expence of performing 

1 Madison to Andrew Stevenson, Nov. 17, 1830. 



474 POWERS OF CONGRESS 

the act. Nor was any special provision for debts proposed, 
till the case of the Revolutionary debts was brought into 
view, and it is a fair presumption from the course of the varied 
propositions which have been noticed that but for the old 
debts and their association with the terms 'common defence 
and general welfare', the clause would have remained as 
reported in the first draft of a Constitution expressing 
generally a power in Congress 'to lay and collect taxes, 
duties, imposts and excises' without any addition of the 
phrase, 'to provide for the common defence and general 
welfare.' With this addition, indeed, the language of the 
clause being in conformity with that of the clause in the 
Articles of Confederation, it would be qualified as in those 
Articles by the specification of powers subjoined to it." 

It is equally clear that no delegate, at that time, con- 
ceived that the phraseology recommended by the Com- 
mittee was, in any way, altering or expanding the power 
to levy taxes which had theretofore been voted, except 
to extend the application of that power to these prior 
debts. The whole intent of the change was evidently 
to make the power to levy taxes for the purpose of pay- 
ing these old debts an express power, instead of leaving 
it to be implied or doubtful. The question arises : Why, 
then, did the Committee insert the additional words, 
"and provide for the common defence and general wel- 
fare of the United States" ? In Governor Livingston's 
Committee Report of August 21, these words had been 
used with reference to prior debts, and merely de- 
scribed them as having been incurred during the late 
war "for the common defence and general welfare." 
The probable reason for their insertion by Judge Brear- 
ley's Committee was as follows. 1 Had the Convention 
simply voted that Congress should have "power to lay 
and collect taxes, duties, imposts and excises, to pay 

1 SPP especially Judge Story's Position on the so-called General Welfare Clause, by 
Henry St. George Tucker, American Bar Association Journal (JulyAugust, 1927), 
XIII. 



THURSDAY, AUGUST 16, 1787 475 

the debts of the United States", and had it stopped there, 
such a provision might have been construed as giving 
Congress the power to levy and collect taxes to pay the 
old debts and only for that purpose. Some words evi- 
dently had to be added that would make clear the power 
of Congress to levy taxes for all the National purposes 
set forth in the grants of power subsequently specified 
in this section. Evidently the Committee selected 
these words, "to provide for the common defence and 
general welfare", as comprising all the other purposes 
for which Congress was to be empowered to levy and 
collect taxes. They selected these words as embracing 
all the subsequent limited grants of power which the 
Committee of Detail, in its Report of August 6, had 
specified as constituting that amount of common 
defence and general welfare which the National Govern- 
ment ought to control and as to which it ought to have 
power of legislation. In other words, the phrase "to 
provide for the general welfare" is merely a general 
description of the amount of welfare which was to be 
accomplished by carrying out those enumerated and 
limited powers vested in Congress and no others. 1 

Such would seem to have been the evident intention 
of the delegates in using these words. Two other inter- 
pretations, however, have, in later years, been given to 
this clause one of which has been definitely aban- 
doned, but the other of which is the prevailing inter- 
pretation at the present time. 

1 It is to he especially noted that the Committee and the Convention, when they 
adopted, on September 4, the taxing clause with these words in it, did not borrow 
the words from the Preamble to the Constitution, though it has frequently been 
stated by historians, legal writers, and statesmen that they did so borrow. For 
the Preamble, on that date, did not contain these words, and they were not inserted 
until September 12, in the Report of the Committee on Style. On September 3, 
these words were borrowed from the Articles of Confederation, in which they were 
words of mere general import, containing no grant of power; and clearly, when 
used in this taxing clause, they were intended to be equally devoid of grant of power 
and to be simply descriptive, in general, of the remaining grants of power vested in 
the same section. 



476 POWERS OF CONGRESS 

In the early years following the adoption of the Con- 
stitution, a few statesmen who advocated extreme, 
Nationalistic power contended that the words "to pay 
the debts and provide for the common defence and 
general welfare of the United States" constituted a 
separate, independent, and substantial power of Con- 
gress, and were not to be construed as integrally a part 
of the power to lay taxes. Such an interpretation has 
been long demolished the final blow to it being given 
by Judge Story, in 1833, in his Commentaries on the 
Constitution. 1 For to use his own impressive words : 

"The Constitution was, from its very origin, contemplated 
to be the frame of a National Government, of special and 
enumerated powers, and not of general and unlimited powers. 
This is apparent, as will be presently seen from the history 
of the proceedings of the Convention which framed it ; and 
it has formed the admitted basis of all legislative and judicial 
reasoning upon it, ever since it was put into operation, by all 
who have been its open friends and advocates, as well as by 
all who have been its enemies and opponents. If the clause, 
'to pay the debts and provide for the common defence and 
general welfare of the United States', is construed to be an 
independent and substantive grant of power, it not only 
renders wholly unimportant and unnecessary the subsequent 
enumeration of specific powers, but it plainly extends far 
beyond them and creates a general authority in Congress to 
pass all laws which they may deem for the common defence or 
general welfare. Under such circumstances, the Constitution 
would practically create an unlimited National Government. 
The enumerated powers would tend to embarrassment and 
confusion, since they would only give rise to doubts as to 
the true extent of the general power, or of the enumerated 
powers." 

Story conclusively established that the words "to pay 
the debts, etc." meant precisely the same as if they 

1 See Commentaries on the Constitution (1833), by Joseph Story. I, sections 906- 
911. 



THURSDAY, AUGUST 16, 1787 477 

read " in order to pay the debts, etc. ", and that payment 
of debts, etc., was to be construed as merely descriptive 
of one of the ends and purposes for which Congress was 
granted the power to levy taxes. It is unnecessary to 
discuss this further, as Story's reasoning is everywhere 
now accepted. 

The second interpretation, however, has been the 
one on which Congress has, in practice, long acted, 
though it is contrary to what, as above explained, was 
probably the intention of the delegates. The subse- 
quent practice of Congress has gained most of its 
strength from the support given to it by Judge Story, 
who, after disposing of the theory that the General 
Welfare Clause vested an independent and distinct 
power in Congress, adopted, himself, the following 
interpretation : that the power to levy taxes was 
granted for the purpose of paying the public debts and 
providing for the common defence and general welfare ; 
that Congress may lay a tax in order to pay for any- 
thing which it can reasonably deem to be for the com- 
mon defence and general welfare ; that so long as the 
object is one of "general" as opposed to "local" wel- 
fare, Congress may tax and appropriate money for it; 
and that Congress is clothed with the power of de- 
termining what is the common defence and general 
welfare. 1 

Judge Story's construction has, in fact, resulted in 
vesting Congress with a power practically unlimited in 
its scope. This construction, moreover, produces an 
anomalous result, viz. ; that though Congress has no 
power to create, construct, or administer a specific 
instrumentality unless the power be granted in the 
Constitution, it may, nevertheless, appropriate money 

1 See also letter of John Quincy Adams to Andrew Stevenson, published in the 
National Intelligencer, July 12, 1832, and comments upon it in Mass. Hist. Soc. 
Proc., 2d Series (1905), XIX, 504. 



478 POWERS OF CONGRESS 

raised by taxation to maintain such an instrumentality 
if it deems the same to be for the general welfare. In 
other words, that while Congress may have no Con- 
stitutional power to create a University in every State, 
it may have the power to appropriate money to run 
them, if, in its opinion for the general welfare. 1 The 
illogicality of the result of such an interpretation clearly 
produces a doubt whether the Convention could have 
so intended, and this phase of the question has never 
been more authoritatively set forth than in the famous 
letter written by Madison to Andrew Stevenson, No- 
vember 27, 1830 (quoted supra), in which he said : 2 

"It is to be emphatically remarked that, in the multitude 
of motions, propositions, and amendments, there is not a 
single one having reference to the terms ' common defence and 
general welfare', unless we were so to understand the prop- 
osition containing them made on August 25th, which was 
disagreed to by all the States except one. The obvious con- 
clusion to which we are brought is that these terms, copied 
from the Articles of Confederation, were regarded in the 
new, as in the old instrument, merely as general terms, 
explained and limited by the subjoined specifications, and 

1 See Henry St. George Tucker's able monograph cited supra ; but see United 
States v. Butler (193<>) 297 U. S. 1, affirming Story's views. 

2 See Elliot'* Debates, IV, 612. And see Report of the Virginia Legislature in 
1799, drafted by Madison, in which he stated : "The Congress is authorized to pro- 
vide money for the common defence and general welfare. In both, is subjoined to 
this authority an enumeration of the cases to which their powers shall extend. 
Money cannot be applied to the general welfare, otherwise than by an application of 
it to some particular measure conducive to the general welfare. Whenever, there- 
fore, money has been raised by the general authority, and is to be applied to a par- 
ticular measure, a question arises whether the particular measure be within the 
enumerated authorities vested in Congress. If it be, the money requisite for it may 
be applied to it ; if it be not, no such application can be made." Writings of James 
Madison (Hunt's ed.), VI, 852. 

Jefferson wrote to Gal latin, June 16, 1817: "Our tenet ever was, and, indeed, 
it is almost the only landmark that divides the Federalists from the Republicans, 
that Congress has not unlimited powers to provide for the general welfare, but were 
restrained to those specifically enumerated ; and that, as it was never meant they 
should provide for that welfare but by the exercise of the enumerated powers, so 
it could not have been meant they should raise money for purposes which the 
enumeration did not place under their action ; consequently that the specification 
of powers is a limitation of the purposes for which they may raise money." 



FRIDAY, AUGUST 17, 1787 479 

therefore requiring no critical attention or studied precaution. 
. . . That the terms in question were not suspected in the 
Convention which formed the Constitution of any such 
meaning as has been constructively applied to them, may be 
pronounced with entire confidence ; for it exceeds the possi- 
bility of belief that the well known advocates in the Conven- 
tion for a jealous and cautious definition of federal powers, 
should have silently permitted the introduction of words or 
phrases in a sense rendering fruitless the restrictions and 
definitions elaborated by them." 

In the consideration of the validity of Judge Story's 
interpretation, it must always be borne in mind that 
Story's Commentaries was published prior to the pub- 
lication of Madison's Notes of Debates, and without any 
knowledge of the discussions in the Convention other 
than the records of the motions and votes contained in 
the Journal. 

FRIDAY, AUGUST 17, 1787 

IN CONVENTION 
Powers of Congress 

On August 16 and 17, the Convention took up and 
accepted, without debate or dissent, many other powers 
which the Committee of Detail had recommended for 
Congress ; to establish a uniform rule of naturaliza- 
tion throughout the United States ; to coin money ; to 
regulate the value of foreign coin ; to fix the standard 
of weights and measures ; to establish post offices and 
postroads (later postponed) ; 1 to appoint a Treasurer 

1 It is to be noted that Paterson, in his Plan of June 15, suggested postage as a 
means of raising a revenue, by granting to Congress power "by a postage on all 
letters and packages passing through the general post office, to be applied to such 
Federal purposes as they shall deem proper and expedient." The Convention 
rejected this view of the nature of postage. 

As to the meaning of the phrase as to postroads, see Jefferson to Madison, March 
6, 1796: "Does the power to establish postroads given you by the Constitution 
mean that you shall make the roads, or only select from those already made those 
on which there shall be a post ? If the term be equivocal (and I really do not think 
it so) which is the safest construction?" Later decisions of the Supreme Court 
affirmed the broader construction. 



480 POWERS OF CONGRESS 

(later reconsidered) ; to constitute inferior tribunals 
of the United States ; to make rules as to captures on 
land and water ; and to define and punish piracies and 
felonies committed on the high seas, counterfeiting the 
securities and current coin of the United States, and 
offences against the law of Nations. 

Of all these powers, possibly the most important in its 
effect upon the promotion of union among the States 
was the authority to establish an uniform rule of natu- 
ralization. Confusion, misunderstanding, and injustice 
had resulted from the fact that hitherto each State had 
legislated for itself and according to its own views as 
to the admission of foreigners to citizenship. There 
had been great diversity of treatment; and as Chief 
Justice Taney later said: "The nature of our institu- 
tions under the Federal Government made it a matter 
of absolute necessity that this power should be con- 
fided to the Government of the Union ... a necessity 
so obvious that no statesman could have overlooked it. 
. . . Its sole object was to prevent one State from 
forcing upon all the others and upon the General Gov- 
ernment, persons as citizens whom they were unwilling 
to admit as such." 1 

Besides this important power, the Convention voted 
to vest Congress with the power to regulate commerce 
(which is discussed infra), and with the power to declare 
war the word "declare" being substituted on motion 
of Madison and Gerry, for "make" as reported by the 
Committee. 2 The grant of the war making power to 
the Legislature constituted an innovation in Govern- 

1 See Taney, C. J., in Passenger Cases (1849), 7 Howard pp. 482-483. See also 
The Law of the American Constitution (1922), by Charles K. Burdick, pp. 322-323 ; 
The Federalist, No. 42. It is to be noted that Madison reports no vote of acceptance 
of this power ; but an affirmative vote in its favor appears in the Journal of the Con- 
vention, under date of August 16. 

2 This change was adopted in order to reserve to the President the power to 
repel sudden attacks. " The Executive should be able to repel, and not commence, 
war/' said Roger Sherman. 



FRIDAY, AUGUST 17, 1787 481 

ment. 1 In all other countries that power had been 
vested in the Executive. Pierce Butler of South Caro- 
lina favored vesting this power in the President, since 
he "will have all the requisite qualities and will not 
make war but when the Nation will support it" to 
which Gerry retorted that he "never expected to hear 
in a Republic a motion to empower the Executive alone 
to declare war." Charles Pinckney, expressing the 
view that the proceedings of the Legislature "were too 
slow", its meetings too infrequent, and its composition 
"too numerous for such deliberations", favored vesting 
the war power in the Senate as "more acquainted with 
foreign affairs and most capable of proper resolutions", 
especially since the Senate (at this stage in the sessions) 
was vested with the power to make treaties, and "it 
would be singular for one authority to make war, and 
another peace." No support was given to either of 
these proposals. 2 The extent of this power of Congress 
to declare war has been defined by the Supreme Court : 
"that every contention by force between two nations, 
in external matters, under the authority of their respec- 
tive governments is not only war, but public war." In 
recent years, Congress has acquiesced in the assump- 
tion by the President of a certain part of this war 

power. 3 

OUT OF CONVENTION 

The Gazetteer published a letter, signed "Meanwell", 
suggesting that the Convention, when it had finished its 

Jefferson wrote to Madison, Sept. 6, 1789: "We have already given, in 
example, one effectual check to the dog of war, by transferring the power of letting 
him loose from the Executive to the Legislative body, from those who are to spend 
to those who are to pay." 

2 Talbot v. Seamen (1801), 1 Cranch 1 : "The whole powers of war being, by the 
Constitution of the United States vested in Congress. ..." Bas v. Tingy (1800), 
4 Dallas 37, 400, see also The Prize Cases (1863), 2 Black 635, 668 : "By the Con- 
stitution, Congress alone has the power to declare a national or foreign war. . . . 
He (the President) has no power to initiate or declare a war against a foreign nation 
or a domestic State." 

3 See especially Executive Assumption of the War-Making Power, by Albert H. 
Putney, National f r niversity Law Rev. (1927), VII. 



482 POWERS OF CONGRESS 

draft should only adjourn so as to be ready to meet 
again to consider any changes. "We have now sit- 
ting," he said, "a Convention which, I am persuaded, 
would have done honor to the State of Greece and Rome 
in their highest glory. . . . Every honest man will 
readily agree with me in opinion, that our future politi- 
cal safety and happiness depends on the results of their 
present deliberations." l 

SATURDAY, AUGUST 18, 1787 

IN CONVENTION 
Powers of Congress over the Army and Navy 

On this day, Madison and Charles Pinckncy sub- 
mitted twenty additional powers, "as proper to be 
added to those of the Legislature." These were 
referred to the Committee of Detail for consideration. 
The Convention also voted to refer to a "Grand Com- 
mittee" of eleven, consideration of the subjects of 
assumption of State debts, and power of the National 
Government over the State militias. 

Three further powers to Congress were voted, viz. : 
"to raise and support armies" ; "to provide and main- 
tain a navy" ; and "to make rules for the government 
and regulation of the land and naval forces." This 
latter power had not been suggested by the Committee 
of Detail ; but as it was contained in the old Articles 
of Confederation, it was now voted. Discussion of the 
former power developed the old jealousy of the Ameri- 
can Colonies and States against the maintenance of 
standing armies in time of peace. Gerry called atten- 
tion to the lack of any check against this, and said that 
"the people were jealous on this head, and great opposi- 
tion to the plan would spring from such an omission." 
He thought an army in time of peace to be dangerous, 

1 New York Daily Advertiser, Aug. 23, 1787. 



SATURDAY, AUGUST 18, 1787 483 

and he moved that "in time of peace the army shall not 
consist of more than men", suggesting that 2000 

or 3000 should be sufficient. Luther Martin supported 
him. At this point in the Convention, as later nar- 
rated by General Mercer, General Washington, who was 
in the Chair and therefore could offer no motion, turned 
to a delegate who stood near and in a whisper made the 
satirical suggestion that he move to amend the motion 
so as to provide that "no foreign enemy should invade 
the United States at any time, with more than three 
thousand troops/' 1 To the same effect, General Pinck- 
ney asked "whether no troops were ever to be raised 
until an attack should be made upon us" ; and Dayton 
observed that "preparations for war are generally made 
in peace ; and a standing force of some sort may, for 
aught we know, become unavoidable." Gerry's motion 
was unanimously rejected. On September 5, Judge 
Brearley's Committee proposed to add to the clause 
granting to Congress the power "to raise and support 
armies", the further proviso "but no appropriation of 
money to that use shall be for a longer term than two 
years." This provision was an example of the same 
apprehensions which had been felt in England and 
which led to the provisions contained in the Mutiny 
Acts making army appropriations annually. It was 
adopted without dissent, though Gerry expressed his 
opposition on the ground that "it implied there was to 
be a standing army, which he inveighed against as dan- 
gerous to liberty, as unnecessary even for so great an 
extent of country as this, as, if necessary, that some 
restriction on the number and duration ought to be 
provided." Moreover, said he, this is not a proper 
time for "such an innovation", and "the people will not 
bear it." Sherman also stated that he would like "a 
reasonable restriction on the number and continuance 

1 Quoted by Paul Wilstach in Patriots off Their Pedestals (1927). 



484 POWERS OF CONGRESS 

of an army in time of peace." Following the action on 
August 18, a warm debate took place on the proposed 
power of Congress over the State militia. The subject 
was referred to a Committee (as discussed infra, under 
date of August 23). 

As illustrations of the deep seated sentiments then 
prevalent, it may be noted that the Massachusetts 
members of Congress had written to their State Legis- 
lature, June 4, 1784, that (with the other New England 
members), they had given vigorous opposition to any 
power in Congress to raise standing armies in time of 
peace, on the ground that it was unconstitutional and 
that the militia was "the constitutional and only safe 
defence of Republican Government;" and Richard 
Henry Lee had written to James Monroe, January 5, 
1787, that: "You are perfectly right in your observa- 
tion concerning the consequence of a standing army 
that it has constantly terminated in the destruction 
of liberty. It has not only been constantly so, but I 
think it clear, from the construction of human nature, 
that it will always be so. ... A well regulated 
militia is indeed the best defence and only proper 
security for a free people to venture upon." 

The Convention had now been in session three 
months, and members were desirous of returning home. 
Accordingly, it was voted that the meetings thereafter 
begin at 10 A.M., and last until 4 P.M. this being the 
proposal of Rutledge of South Carolina, who remarked 
on "the probable impatience of the public and the 
extreme anxiety of many members of the Convention 
to bring the business to an end." A week later, on 
August 24, the Convention repealed this vote and again 
fixed the hour of adjournment at 3 P.M., as the later 
hour had seriously interfered with the dinner hour then 
prevailing in Philadelphia. 



SUNDAY, AUGUST 19, 1787 485 

OUT OF CONVENTION 
Washington noted : 

"In Convention. Dined at Chief Justice McKean's. 
Spent the afternoon and evening at my lodgings." 

SUNDAY, AUGUST 19, 1787 

Washington noted : 

"In company with Mr. Powell rode up to the White 
Marsh, traversed my old Incampment, and contemplated 
on the dangers which threatened the American Army at that 
place. Dined at Germantown, visited Mr. Blair McClene- 
gan, drank tea at Mr. Peter's and returned to Philadelphia 
in the evening." 

The slow progress of the Convention and the diversity 
of views prevailing were the subjects of a letter 
which Washington wrote, this day, to General Henry 
Knox: 

"By slow, I wish I could add, and sure movements, the 
business of the Convention progresses but to say when it 
will end, or what will be the result, is more than I dare 
venture to do and therefore shall hazard no opinion thereon. 
If some thing good does not proceed from the session, the 
defects cannot with propriety be charged to the hurry with 
which the business has been conducted, notwithstanding 
which many things may be forgot, some of them not well 
digested, and others from the contrariety of sentiments with 
which such a body is pervaded become a mere nihility. Yet 
I wish a disposition may be found in Congress, the several 
State Legislatures and the community at large, to adopt 
the Government which may be agreed on in Convention, 
because I am fully persuaded it is the best that can be 
obtained at the present moment under such diversity of ideas 
as prevail." 



486 POWERS OF CONGRESS 

MONDAY, AUGUST 20, 1787 

IN CONVENTION 
The Necessary and Proper Clause 

On this day, Charles Pinckney again proposed nu- 
merous new provisions and (with Gouverneur Morris) 
submitted a plan for a Council of State for the President 
all of which were referred to the Committee of 
Detail. 

The most notable action by the Convention was the 
adoption of the power proposed for Congress by the 
Committee of Detail in its Report of August 6, viz. : " to 
make all laws that shall be necessary and proper for 
carrying into execution the foregoing powers, and all 
other powers vested, by this Constitution, in the Gov- 
ernment of the United States, or in any department or 
officer thereof." This "Necessary and Proper Clause ", 
termed by opponents of the Constitution the "sweep- 
ing clause", was voted without dissent, and in the Con- 
stitution as finally drafted it became the last clause of 
Article I, section 8. Neither the original Randolph 
Resolutions nor the Paterson Plan nor the Pinckney 
Plan contained any such clause; but the alleged 
Pinckney Plan, sent to Secretary of State John Quincy 
Adams in 1818, contained the following provision : "to 
make all laws for carrying the foregoing powers into 
execution." The plan submitted by Hamilton to 
Madison, at the close of the Convention, needed no such 
power ; for it granted to the Congress complete "power 
to pass all laws which they shall judge necessary to the 
common defence and general welfare of the Union." 
In the first draft of a Constitution, however, presented 
by Randolph to the Committee of Detail, John Rut- 
ledge had inserted the following power for Congress : 
" and a right to make all laws necessary to carry powers 
into execution " ; and from this, the Committee devel- 



MONDAY, AUGUST 20, 1787 487 

oped the present clause. 1 That it did not arouse any 
discussion in the Convention was probably due to the 
fact that the delegates understood that this clause, in 
reality, added nothing to the powers already granted. 
As George Nicholas later pointed out in the Virginia 
Convention : "Suppose it had been inserted at the end 
of every power that they should have powers to make 
laws to carry that power into execution, would this 
have increased their powers?" 2 They undoubtedly 
accepted the reasons which Madison and Hamilton later 
advanced in The Federalist, in 1787-1788. 3 Hamilton 
wrote as to the words in this clause : 

"They are only declaratory of a truth which would have 
resulted by necessary and unavoidable implication from the 
very act of constituting a Federal Government and vesting 
it with certain specified powers. . . . What is a power but 
the ability or faculty of doing a thing ? What is the ability 
to do a thing but the power of employing the means necessary 
to its execution? ... A power to lay and collect taxes 
must be a power to pass all laws necessary and proper for the 
execution of that power ; and what does the unfortunate and 
calumniated provision in question do, more than declare the 
same truth ; to wit, that the National Legislature to whom 
the power of laying and collecting taxes had been previously 
given, might, in the execution of that power, pass all laws 
necessary and proper to carry it into effect. ... It is 

1 See The Growth of the Constitution (1900), by William M. Meigs. The theory 
had been succinctly stated by Ruf us King early in the Federal Convention (July 20) : 
"The Committee are to provide for the end. Their discretionary power to provide 
for the means is involved, according to an established axiom." 

2 See Elliot's Debates, III, 245 ; and see also discussion of this Necessary and 
Proper Clause by Mason and Randolph, ibid., 442, 470. 

3 The Federalist, Nos. 38, 44. It is to be noted that incidental powers derived 
from this Necessary and Proper Clause may themselves be the source of propaga- 
tion of other incidental powers. "Thus the textually specified war power yields, 
as successive incidents, in successive stages : the military pension power ; power of 
protection of pensioners, as such, and of pension money, as such ; power of follow- 
ing pension money through changes of form; power of conversion, pro tanto, of 
State guardianship status into Federal guardianship status, with individual Federal 
duty and liability, and with power of Federal criminal punishment for violation of 
such status." See Principles of the Federal Law (1917), by Heman W. Chaplin, 
p. 90, and cases cited. 



488 POWERS OF CONGRESS 

expressly to execute these powers, that the sweeping clause, 
as it has been affectedly called, authorizes the National 
Legislature to pass all necessary and proper laws." 

And Madison wrote : 

"Had the Convention attempted a positive enumeration 
of the powers necessary and proper for carrying their other 
powers into effect, the attempt would have involved a com- 
plete digest of laws on